Articles by jlppadmin

Should Animal-Human Hybrids be Patentable?

(Source)   From the Greek Minotaur to Japanese mermaids, or Ningyo, people across the world have been fascinated with human-animal hybrids for centuries. In more recent years, scientists have tried to make hybrids, previously considered impossible, into a reality. These real, but controversial, hybrids are not yet like the ones in movies. Usually, the scientists’ objective is to introduce human cells into a non-human organism, ensure the cells’ survival, and foster their growth inside the host animal. With each year that passes, scientists get closer and closer to the possibility of a more “humanized” hybrid. While this is still some time away, scientists created a human-monkey chimera that was viable for 20 days in 2021. Even if we never reach humanized hybrids, many people in the science community would consider even the most simplistic human-animal hybrids to be at least a moral dilemma and at most a clear ethical violation. The legal community specifically has many unanswered questions concerning these hybrids. As with any other technological or scientific advancement, the creators have the possibility to patent their invention. The Patent-Eligibility Doctrine, 35 USC Section 101, states “any new and useful process, machine, manufacture, or composition of matter, or any new [read more]

The Lemon Test: Its Inception, Application, and Death

(Source)   The First Amendment commands that congress “shall make no law respecting an establishment of religion.” Nevertheless, deciding what laws impermissibly establish religion is not an easy task.  Lemon v. Kurtzman, decided in 1971, was a defining moment in First Amendment jurisprudence and became a critical test of Establishment Clause violations for decades. However, the recent Supreme Court decision in Kennedy v. Bremerton School District is being viewed as the official end of the Lemon Test with the Court holding that the test had been “long ago abandoned.” While prior cases implied the growing dislike of Lemon, Kennedy sparked a new debate on the Establishment clause and the Court’s approach in future cases. In Lemon v. Kurtzman, decided in 1971 and written by Chief Justice Burger, the Supreme Court held that Pennsylvania’s and Rhode Island’s laws allowing state funding of certain teachers’ salaries in church-related educational institutes violated the Establishment Clause. These state laws would grant state funding to supplement the salaries of teachers in religious schools who taught secular subjects due to concerns with rising salaries and school costs. The Court held that the laws were unconstitutional and created a three-part test to determine whether laws were permitted [read more]

ABA Resolution 100 and a Lawyer’s Duty to Investigate

(Source)   In what has been described as a breath-taking reform, the American Bar Association (ABA) amended their Model Rules in August of this year and imposed an unprecedented duty on lawyers to investigate their clients before and during representation. To fully understand this change, we will consider the former rules and pressure for reform, the ABA’s Formal Opinion in 2020, and their recent changes in ABA Resolution 100. The ABA produces the Model Rules of Professional Conduct for lawyer’s conduct. Although the rules themselves are not directly binding on lawyers, states use these model rules as a basis for their own mandatory ethic rules and will often rely on ABA material, like formal opinions, in interpreting their own laws. Currently, under Model Rule 1.2(d) a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” As this rule only prohibits assistance when the lawyer knows that conduct is a crime or fraud, there has traditionally been no requirement to investigate into the clients’ affairs to assess their legality. Past corporate scandals have led to concerns over lawyers’ complicity in client crimes. However, recent concerns are more focused [read more]

High on Your Own Supply: The Sackler Family, the Opioid Epidemic, and Purdue Pharma’s Bankruptcy

(Source)        Recent Events from the Supreme Court Last month, the Supreme Court agreed to hear a challenge from the U.S. Department of Justice to the legality of Purdue Pharma’s bankruptcy settlement, blocking a $6 billion settlement that would have provided the company’s Sackler family with immunity from opioid-related civil claims. If the settlement is eventually approved, Purdue Pharma would no longer exist but the Sacklers, who used to own control the company, would be shielded from any future opioid-related civil liability without declaring bankruptcy in their individual capacities. Experts say that it is very rare for the Supreme Court to agree to hear a bankruptcy case, largely because bankruptcy cases rarely make it to the nation’s highest court, as parties are pressured to settle early on. In a statement, Purdue Pharma expressed its disappointment of the government’s challenge, saying that the Justice Department has been able to “single handedly delay billions of dollars in value that should be put to use for victim compensation…”. On the other hand, the government has described this immunity deal as “exceptional and unprecedented” and an “abuse of the bankruptcy system” in court papers, emphasizing that lower courts have been unclear on [read more]

Core Principles of Future U.S. Private Refugee Sponsorships? Naming and Additionality

(Source)        I.     Introduction The number of forcibly displaced persons is at a historic high. But receiving countries have failed to meet global resettlement needs, including the United States. By the end of fiscal year 2022, over 100,000 places remained unused of the 125,000 U.S. refugee resettlement target. Private refugee sponsorships could increase resettlement capacities, both globally and nationally. Internationally, countries have recognized that private refugee sponsorships can open additional resettlement resources. Over 180 states committed under the Global Compact on Refugees to establish community-based sponsorship programs in addition to regular resettlements. The immigration ministers of Canada, the United Kingdom, Spain, Argentina, Ireland, and New Zealand endorsed community-based sponsorships, and invited other countries to adopt similar programs in a joint statement. To that end, the Global Refugee Sponsorship Initiative showcases Canada’s long experience and supports countries to design new programs according to their unique needs. The number of countries with community-based sponsorship programs has grown, and the United States could learn from international experiences. Canadian experience demonstrates positive effects of private sponsorships for refugees and the receiving community. A 2020 study showed that privately sponsored refugees were more likely than government-assisted refugees to be working within the [read more]

Looks Like Lochner: will employers’ property interests consume their employees’ rights to physical and digital property access?

(Source) In Cedar Point Nursery v. Hassid (2021), the U.S. Supreme Court ruled that California’s Agricultural Labor Relations Act (“ALRA”) constituted a per se physical taking under the 5th Amendment’s Takings Clause (applicable to states through the 14th Amendment). The ALRA gave union organizers a “right to take access” to an agricultural employer’s worksites to help employees exercise their union rights.  This “right to take access” violated the Takings Clause in its infringement on a property owner’s right to exclude persons from their property.  Furthermore, the ability of union organizers to access worksites inconveniently distant from public spaces has enabled isolated workers to learn about and exercise their workplace rights. Think of workers in a ski town or at one of Orlando, Florida’s many amusement parks. There is no public property where workers can easily meet near their workplace to organize—all the surrounding land is the employer’s private property. As a result, the NLRB has interpreted the National Labor Relations Act (“NLRA”) to permit permits non-employee union organizers to access an employer’s physical premises to organize workers. The Court in Cedar Point Nursery v. Hassid overturned a California law creating that right because it constituted a per se taking in [read more]

Right to Strike, Take a Hike! Evisceration of right to workplace speech continues.

(Source) On January 10th, 2023, the Supreme Court heard oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters (No. 21-1449). Ready-mix concrete supplier Glacier Northwest appealed a Washington Supreme Court decision that barred its lawsuit against a union under Washington state tort law for allegedly intentionally destroying company property during a labor dispute. The Washington Supreme Court held that the National Labor Relations Act (“NLRA”) preempted this sort of state tort suit. The events that gave rise to the suit unfolded while workers were actively bargaining for a collective bargaining agreement. The NLRA requires that employers and unions bargain in “good faith” by adhering to certain obligations. Failing to meet these obligations qualifies as an unfair labor practice (“ULP”), which is unlawful under the NLRA. Cement-mixer drivers in Washington, represented by the Teamsters Union and employed by Glacier Northwest, grew frustrated with the pace of bargaining and voted to strike by walking off the job— a common form of labor action protected by the NLRA. On the day of the strike, drivers scheduled to report to work early arrived as usual, loaded their trucks’ drums with cement, and conducted their morning deliveries. When the clock struck the coordinated [read more]

Times of (Not So) Good Behavior: The Need for a Supreme Court Code of Conduct

(Source) In recent times, the Supreme Court has faced record low approval ratings and a series of controversies. Despite this increasing unhappiness with the Court’s performance, there is not much the American public can do to change how the Court operates. The Court is incredibly insulated from public opinion and the political process. Justices serve for life and set their own ethical standards. Unlike the rest of the federal judiciary, no code of conduct explicitly applies to Supreme Court Justices. This state of affairs has led to concerns about impartiality, especially as related to the Justices’ spouses’ political and business activities. Given this reality, the Supreme Court should adopt a code of conduct for itself. A code of conduct will help maintain uniform standards of impartiality and help avoid impropriety. The most recent ethical controversy plaguing the Court surrounds Chief Justice John Roberts’ wife’s recruiting work. Jane Sullivan Roberts works at the legal recruiting firm Macrae and has received six-figure commissions for helping place top legal talent at law firms. Politico reported that some of these firms have argued cases before the Supreme Court, but the Chief Justice has never acknowledged these specific conflicts of interest or recused himself due [read more]

Invisible Wall – None to Low Burden for the Government to Exclude

(Source) Title 42 expulsion during Pandemic Section 265 of the Public Health Service Act (42 U.S.C. § 265) promulgated that when the CDC determines by reason that there is a communicable disease in a foreign country and that if the suspension of the right to introduce the persons and property into the United States is in the interest of public health, the CDC shall have the power to prohibit, in whole or in part, the introduction of such person or property into the United States. Since March 2020, the CDC issued public health emergency order and allowed rapid expulsion of border crossers, which include asylum seekers, without a hearing which overrides immigration law that allows Asylum seekers to enter without authorization and apply at the ports of entry. The grant of asylum is purely discretionary, and even if the asylee established a well-founded fear of persecution under Title 8, they may still not be allowed to stay. When such asylum seekers are removed, they will typically be deported to their home country, where they allegedly will face persecution and torture. Such removal might violate International Convention Against Torture (“Torture Convention”) and Federal Statutes and Regulations (8 C.F.R § 208.16) if the claimed persecutions were true. Moreover, [read more]

Building Better Public Schools through Restorative Justice

(Source) Fremont High School in Oakland, California used to have the highest rate of suspension in its district, 1 in 3 students dropped out, and only 1 in 4 students qualified to attend public college in California.  But since the Oakland Unified School District (OUSD) made a $2.5 million investment to expand its restorative justice program throughout the district in 2017, incidents leading to suspension have dropped dramatically and the number of students who qualify for college admission has “nearly tripled.”  OUSD is one of several school districts throughout the country to adopt restorative justice practices as an alternative to retributive justice over the past two decades.  David Ryan Castro-Harris of Amplify RJ defines restorative justice as “a philosophy and set of practices, rooted in Indigenous teachings, that emphasize our interconnection by repairing relationships when harm occurs while proactively building and maintaining relationships to prevent future harm.”  Restorative justice conferences bring together people who have caused harm, those who have been harmed, and stakeholders from the surrounding community.  All involved parties have the opportunity to share their experience and how the harm affected them before collaborating to find an appropriate solution.  Quantitative research suggests that these practices have a positive [read more]