Feature

Time To End the Backlog

(Source)   Unfortunately, it is common to read or hear about heinous crimes in the news. What may be more shocking, though, is how frequently stories announce that the offenders’ DNA was later found in untested rape kits, sitting on shelves in warehouses, or police evidence rooms for years, or even decades. When these kits go untested there are severe consequences, as I will discuss. Take the case of Eliza Fletcher, the Tennessee woman whose abduction and murder last year shocked the nation. The day following the abduction, police officers took Cleotha Abston-Henderson into custody. Shortly thereafter, we learned that a year prior to Fletcher’s disappearance, another Tennessee woman reported to the police that Abston-Henderson had raped her, and she underwent a sexual assault forensic examination. The results, however, came too late, as law enforcement did not get the results of the exam until several days after Fletcher’s disappearance. Had the results come sooner, there would have been a hit on Abston-Henderson’s DNA because he was previously incarcerated for similarly violent crimes, and Eliza Fletcher would likely still be alive today. But this case is no anomaly. For example, in 2011, the Ohio Attorney General launched an initiative to test [read more]

More Informed Consumers are Still at Risk of Bad Business Opportunities

(Source)   Multi-level marketing schemes (MLM), also often referred to as Direct Sales or Network Marketing, are presented as “business opportunities” targeted primarily at women—especially those struggling with traditional employment; military spouses, mothers with young children, and low-income communities. Throughout the last century, cosmetics and kitchenware companies like Tupperware, Mary Kay, and Avon birthed an industry of social selling to housewives in their living rooms. Saleswomen demonstrated products in a “party” while the host provided light refreshments to guests. Success as a direct seller is difficult with a high turnover rate. MLM companies shift the burden of recruiting and training new sellers onto the existing salesforce through adding a “level” of compensation for the product sales of their recruits, creating the possibility of compensation derived from the endless chain of recruitment. The reality from the FTC is that over 99% of MLM participants lose money, some even acquiring large amounts of credit card debt to participate, compounding the financial and familial hardships that pressed them to seek income in the first place. Even the MLM industry lobby; the Direct Selling Association, has called participation in MLMs an “activity” rather than a job. MLM companies rely heavily on personal relationships to [read more]

Unpack the Plastic Packaging Law

(Source)   We have produced more than 8.3 billion metric tons of plastic. More than enough to cover the entire country of Argentina. But why should we care? It seems like the victims of this plastic crisis are just the turtles, seals, birds, and whales. Ocean plastics indeed have a devasting effect on these animals, but it would be wrong to think that humans are spared.   Plastic Crisis and Climate Crisis Plastic, a ubiquitous material, poses a significant environmental challenge. Derived from oil and natural gas, two major contributors to climate change, the production and use of plastics have far-reaching consequences. Plastics have a substantial carbon footprint, releasing greenhouse gases at every stage of their life cycle, from extraction to manufacturing, distribution, use, and even end-of-life recycling and disposal. In fact, plastic is currently responsible for approximately 3.4% of global greenhouse gas emissions, making it a major environmental concern. To put this into perspective, Judith Enck, president of Beyond Plastics, notes that if plastic were a nation, it would rank as the world’s fifth-largest greenhouse gas emitter. Looking ahead, plastics consumption is set to be the largest driver of global oil demand, accounting for 20% of global oil and [read more]

Unionizing Post-Cemex

(Source)   Just earlier this month, SAG-AFTRA approved a deal to end the monumental strike that lasted over 100 days. Actors, writers, and other media professionals were on strike to protest the companies represented by the Alliance of Motion Picture and Television Producers (AMPTP). Some of the most critical issues SAG-AFTRA was fighting for included protection against Artificial Intelligence and adequate compensation from streaming services. Since the strike has highlighted problems within the entertainment industry, a formerly unrepresented sector of the industry – Visual Effects (VFX) Artists – has unanimously voted to unionize. Amid the strikes and calls for unionization, an extremely important NLRB decision was released in late August, Cemex Construction Materials Pacific, LLC. The Board announced a new framework for determining when employers are required to bargain with unions without an election. When a union requests recognition based on a majority of employees designating the union as a representative, an employer has two options: (1) immediately recognize and bargain with the union or (2) file a petition to seek a ballot election. Before the Cemex decision, if an employer committed an unfair labor practice (ULP) during the election, the NLRB would call for a re-election. Now, the Board [read more]

Discovering Discovery: Analyzing the arguments for automatic discovery of Police Disciplinary Records

“Slides Box Paperwork” by cdsessums is licensed under CC BY-SA 2.0. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/2.0/?ref=openverse.   Dedication This article is dedicated to my friends at the Steuben County Public Defender’s Office, who this summer were awarded the Jonathan E. Gradess Service of Justice Award for their work in upholding New York State’s discovery reform.   Introduction How much information should a criminal defense attorney have when walking into court? According to the New York State legislature, quite a lot. Three years ago, the legislature passed a sweeping reform of discovery, including the addition of automatic discovery in criminal cases. However, prosecutors and defense attorneys are at odds over what the precise extent of the new law is. The upshot of the discovery reforms is that they define 21 types of material that must be turned over in every case, whether the defense attorney requests it or not. These materials include body camera footage and sworn statements from witnesses and police. However, the exact scope of what material needs to be turned over has yet to be fully litigated, despite a presumption of openness written into the law itself. The reform has been broadly popular with [read more]

Protecting Users in the World of Generative-AI Music

(Source)   It has been six months since Ghostwriter977’s release of AI-Drake and AI-Weeknd’s “Heart on My Sleeve.”  The one-minute snippet was completely generated by artificial intelligence that modeled Metro Boomin’s distinctive beats and both Drake and the Weeknd’s voices. Approximately two weeks after, the infringing work was taken down based on a copyright claim by Universal Music Group. Following the legal debate around the rise of generative artificial intelligence (AI), TikTok published its “AI-generated” label for AI-generated visual or audio content last month. Creators must attach this label to TikTok videos that contain realistic portrayals, both audio and video, to help contextualize the video and prevent the potential spread of misleading content. The “AI-generated” label may apply to any content that has been completely edited or generated by AI. In contrast, music streaming giant Spotify has not yet created notices for creators to attach to their content. Spotify head Daniel Ek has taken the position that AI-assisted music creations are acceptable while stances on generative AI are unknown. Ek’s position makes sense: AI can speed up music generation immensely. AI has made music production accessible and affordable to aspiring artists. Rather than spending hours recording and editing instrumentals, artists [read more]

When Is It Okay To Lose? Reviewing FTC Chair Khan’s Legal Strategy

(Source)   On September 26, 2023, the Federal Trade Commission (FTC) sued Amazon, Inc. alleging the big tech company to be a monopolist employing a variety of anticompetitive practices. This action arguably represents the largest federal antitrust action since regulators went after Microsoft in the mid-90’s. However, in the background of this high-stakes litigation looms a series of major FTC courtroom loses incurred under the direction of Chair Lina Khan. In fact, it was only two months prior to this filing that the FTC failed to block a proposed $68.7 billion merger between Activision and Microsoft. As such, congresspersons and commentators alike have raised questions about the efficacy of Khan’s strategy.   Who is Lina Khan? Lina Khan was confirmed as FTC Chair on June 15, 2021. Reflecting the general posture of the Biden Administration, commentators expected Khan to employ increased scrutiny against the Big Tech industry. Prior to getting tapped, Khan was a student at Yale Law School where she rose to prominence after publishing her 2017 article, Amazon’s Antitrust Paradox, in the Yale Law Journal. In this article, using Amazon as her case study, Khan argued that the U.S.’s antitrust framework is inadequate in addressing the challenges of [read more]

A Story of Exclusion: Foreign Migrant Workers in Taiwan

(Source)   The movement of people across borders is a defining feature of our globalized world. Taiwan, strategically situated at the crossroads of East and Southeast Asia, has experienced waves of immigration throughout its history. There has been a notable surge in migrants predominantly from Southeast Asia in the past two decades. Taiwan’s demographic transition to an aging, advanced industrial economy has led to labor shortages beginning in the 1990s, causing the government to open up work opportunities that have attracted migrants seeking economic upward mobility. Currently, Taiwan hosts around 700,000 migrant workers who make up more than 70% of the 960,000 foreign population in Taiwan. The three primary countries of origin are Vietnam, Indonesia, and the Philippines. Migrant workers play a vital role in fostering Taiwan’s economic development by addressing the persistent labor shortages. They have become an integral component of Taiwan’s labor landscape, spanning various sectors, approximately 506,000 migrant workers in industrial jobs such as factories, construction, fishing boats and 221,000 working as social welfare workers (overwhelmingly as in-home caregivers). For instance, dating back to 1992, the steady inflow of foreign migrants has been instrumental in mitigating Taiwan’s “care crisis” amidst its quickly aging population. Moreover, migrant workers [read more]

Better Than “Best Interests:” Ensuring Children’s Wellbeing

(Source)   Children must be protected. This obligation animates much of United States political landscape. In the name of their protection, policymakers have pursued laws limiting not only children’s access to healthcare and to information, but also adults’ access to healthcare and to information. In this way, children’s protection is often instrumentalized to repress the autonomy of all. In decisions regarding children, courts are guided by a policy of protecting children’s “best interests”; but does this policy unduly interfere with the freedoms of adults? And more importantly: is it effective in protecting children? Child maltreatment is an ongoing and pervasive problem. Over 1/3 of children experience a child protective services investigation before they turn 18 and an approximated 600,000 children were maltreated in just 2021, a prevalence rate that had not changed much in the prior 7 years. Children are maltreated both at the hands of family members and state-assigned custodians. Not only harmed by direct mistreatment, children are also structurally disenfranchised. Kicked out of public spaces, facing barriers to transit, suffering from decaying school budgets, and with only a limited legal voice of their own, children as a political group are amongst the most marginalized. The United States especially [read more]

Self-Represented Litigants and the Pro Se Crisis

(Source)   In Latin, pro se means “for oneself” or “on one’s own behalf.” In court, pro se means at least one party represents itself without an attorney’s assistance. While criminal defendants may also appear pro se, this article focuses on the challenges present in civil pro se cases. Pro se litigants’ case outcomes are generally very unfavorable. In federal district courts from 1998 to 2017, around 12% of pro se defendants received final judgments in their favor while pro se plaintiffs won only 3% of final judgments. This statistic means when parties choose to represent themselves, they lose around 80-90% of the time. In contrast, when both parties were represented in the study, plaintiffs’ and defendants’ win percentages were roughly the same, as expected. The Conference of State Court Administrators found similar trends in pro se litigation across the court community. Self-represented litigants could disproportionately lose to parties represented by counsel for many reasons. One explanation for this imbalanced outcome is the attorney contingency fee system. Many times, lawyers work on contingency fee bases where they receive fees only when their clients win. Due to this system, lawyers favor representing clients with stronger cases while parties with weaker cases [read more]