Business of Bees

Federal agencies expanding their power beyond congressional intent? Unelected bureaucrats making policy decisions? Regulatory whiplash?! According to the litigants urging the Supreme Court to strike down the Chevron doctrine in the Loper Bright case, those were the harms Americans would continue to face if Chevron deference were allowed to continue. But striking down the pivotal legal principle that had been in place for 40 years would bring its own risks, defenders of Chevron argued. Scientific and technical decisions would need to be made by judges with no specialized expertise. Regulatory uncertainty would soar, as thousands of existing rules face new challenges. And the Supreme Court itself could be forced to become, as Justice Ketanji Brown Jackson put it, "uber-legislators." In part two of our episode on Loper Bright, the high court ostensibly considers the plight of the herring fishermen, but actually looks to decide whether to abandon the Chevron doctrine once and for all.Stylebook flag Featured Guests: Ryan Mulvey, counsel with the Cause of Action Institute Jeff Kaelin, director of sustainability and government relations at Lund's Fisheries Wayne Reichle, President of Lund's Fisheries Gillian Metzger, Harlan Fiske Stone Professor of constitutional law at Columbia University Lydia Wheeler, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law Greg Stohr, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg News Kimberly Robinson, co-host of Cases and Controversies & Supreme Court reporter for Bloomberg Law *** Hosted and produced by Matthew S. Schwartz Editor/Executive Producer: Josh Block Cover Art: Jonathan Hurtarte Special thanks to Tom Taylor, David Schultz, Paul Detrick, Isabel Gottlieb, and Matt's baby for their vocal performances.

Wayne Reichle – who's been in the fishing business his whole life – had never heard of the Chevron doctrine. That's the two-step legal test that courts used for the past 40 years to decide whether a federal agency had the authority to make a regulation. "No idea," said Reichle, president of New Jersey-based Lund's Fisheries. "Myself, and many, many fellow fishermen had no idea what the Chevron doctrine was." That changed after a group of fishermen challenged a federal regulation requiring the herring industry to pay for onboard federal observers. "I think there's quite a few that know what the Chevron doctrine is today," Reichle said. This season on UnCommon Law, we're exploring the limits of agency power. To what extent are federal agencies authorized to create and implement regulations that aren't explicitly mandated by Congress? And what happens when an agency goes too far? In this episode, the story of the fishermen who fought back. Featuring: Wayne Reichle, president of Lund's Fisheries Jeff Kaelin, director of sustainability and government relations at Lund's Fisheries Ryan Mulvey, counsel with the Cause of Action Institute Erica Fuller, senior counsel with the Conservation Law Foundation Leif Axelsson, captain of the Dyrsten fishing vessel Greg Stohr, Supreme Court reporter for Bloomberg News *** Hosted and produced by Matthew S. Schwartz Editor/Executive Producer: Josh Block Additional Editing: Andrew Satter Cover Art: Jonathan Hurtarte

Congress often passes major legislation setting out broad principles, and then lets the federal agencies sort out the details. But what should an agency do if Congress's instructions are ambiguous or silent? That was the question facing the Supreme Court 40 years ago, when the Reagan administration's Environmental Protection Agency adopted a business-friendly interpretation of key provisions of the Clean Air Act. After the Natural Resources Defense Council sued, the Supreme Court set out a principle that would define the extent of agency power for decades – until last year, when Loper Bright upended the way courts evaluate agency actions. This season on Uncommon Law, we'll explore the rise and fall of agency power, and what that could mean for the future of regulation in America. Plus: Will President Trump and his advisor Elon Musk be able to use the new legal landscape to eliminate the regulations they find too burdensome? Featuring: David Doniger, Senior Attorney with the Natural Resources Defense Council Jennifer Hijazi, environment reporter for Bloomberg Industry Group

This season on UnCommon Law, join us as we explore the rise and fall of agency power, and what that could mean for the future of regulation in America.

Generative AI has promised to reshape the practice of law ever since ChatGPT emerged. However, it's been unclear just how large law firms are using AI. Has it changed how practitioners do their jobs on a daily basis? Are we witnessing the emergence of a revolution in how lawyers do their work? Uncommon Law's Matthew Schwartz sits in as guest host on this episode of On the Merits. He talks with John Quinn, founder and chair of Quinn Emanuel Urquhart & Sullivan, as they discuss his firm's stance on artificial intelligence and the future of the billable hour.

In the season finale of UnCommon Law, we explore the power of AI to transform legal practice. Featuring insights from top law professors, a federal judge, and industry leaders like John Quinn, founder of Quinn Emanuel, we ask: Can AI's promise of efficiency overcome its risks—and redefine the future of law? Guests: John Quinn, founder of Quinn Emanuel Urquhart & Sullivan, LLP Daniel Ho, professor of law and computer science at Stanford University David Hoffman, professor of law at the University of Pennsylvania Carey Law School Isabel Gottlieb, reporter for Bloomberg Law covering AI and issues impacting corporate legal departments UnCommon Law is hosted and produced by Matthew S. Schwartz.

Deepfakes. Disinformation. Algorithmic bias. Job displacement. These are just some of the harms legislators and regulators worry about when they think about how to tackle the risks posed by artificial intelligence. The first episodes of this season of UnCommon Law deal with generative AI in the copyright law context, since the technology uses massive amounts of copyright protected work. But while copyright law might be the beginning, there's so much more to the story of generative AI and the law. In this episode, we examine what the government might do to ensure that 21st century life doesn't turn into a dystopian future. Guests: Cary Coglianese, director of the Penn Program on Regulation at the University of Pennsylvania Carey Law School Oma Seddiq, tech policy reporter for Bloomberg Government Isabel Gottlieb, reporter for Bloomberg Law covering AI and issues impacting corporate legal departments Learn more about your ad choices. Visit megaphone.fm/adchoices

The US copyright system encourages human creativity. So does it make sense to grant a copyright to work created by AI with the click of a button? And, if AI generated artwork is given copyright protection, how would that impact the livelihoods of creative professionals? In our last episode, we looked at Jason Allen's AI-generated artwork, "Théatre D'opéra Spatial," and the arguments why it should have some copyright protection. This time, we examine the other side – the most powerful arguments for why AI-generated work should never be eligible for copyright. Guests: Jason M. Allen, founder of Art Incarnate Sy Damle, partner in the copyright litigation group at Latham & Watkins Karla Ortiz, artist Kelly McKernan, artist Delanie West, advocacy liaison for the Graphic Artists Guild Genel Jumalon, artist Learn more about your ad choices. Visit megaphone.fm/adchoices

The art world was rattled when Jason M. Allen won first place in the Colorado State Fair for "Théatre D'opéra Spatial" — digital artwork created with artificial intelligence. Allen had revised his text prompts hundreds of times before landing on the final work; Allen considers Space Opera Theater his creation. But some artists hated his victory. "They were saying I was falsely attributing authorship to something I did not create," Allen said.  After winning, he submitted the image to the US Copyright Office for a state-issued seal of approval, an official document certifying that the artwork was indeed his creation. Would the Copyright Office agree? We delved into the controversy surrounding the use of copyrighted material in training AI systems in our first two episodes of this season. Now we shift our focus to the output. Who owns artwork created using artificial intelligence? Should our legal system redefine what constitutes authorship? Or, as AI promises to redefine how we create, will the government cling to historical notions of authorship? Guests: Jason M. Allen, founder of Art Incarnate Sy Damle, partner in the copyright litigation group at Latham & Watkins Shira Perlmutter, Register of Copyrights and director of the US Copyright Office Learn more about your ad choices. Visit megaphone.fm/adchoices

Generative AI tools are already promising to change the world. Systems like OpenAI's ChatGPT can answer complex questions, write poems and code, and even mimic famous authors with uncanny accuracy. But in using copyrighted materials to train these powerful AI products, are AI companies infringing the rights of untold creators? This season on UnCommon Law, we'll explore the intersection between artificial intelligence and the law. On episode one, we learned about the lawsuits filed against AI companies that trained their large language models on copyrighted work without permission. Now we'll learn about the legal defense that could give the AI companies a pass to continue scraping up whatever content they want, copyright-protected or not. Guests: Matthew Butterick, founder at Butterick Law, and co-counsel with the Joseph Saveri Law Firm on class-action lawsuits against OpenAI and others Isaiah Poritz, technology reporter for Bloomberg Law Matthew Sag, professor of law and artificial intelligence, machine learning and data science at Emory University School of Law Mark Lemley, professor of law at Stanford Law School and the director of the Stanford Program in Law, Science and Technology, who is also representing Meta and Stability AI in the copyright cases against them James Grimmelmann, professor of digital and information law at Cornell Tech and Cornell Law School Learn more about your ad choices. Visit megaphone.fm/adchoices

Generative AI tools are already promising to change the world. Systems like OpenAI's ChatGPT can answer complex questions, write poems and code, and even mimic famous authors with uncanny accuracy. But in using copyrighted materials to train these powerful AI products, are AI companies infringing the rights of untold creators? This season on UnCommon Law, we'll explore the intersection between artificial intelligence and the law. Episode one examines how large language models actually ingest and learn from billions of online data points, including copyrighted works. And we explore the lawsuits filed by creators who claim their copyrights were exploited without permission to feed the data-hungry algorithms powering tools like ChatGPT. Guests: Matthew Butterick, founder at Butterick Law, and co-counsel with the Joseph Saveri Law Firm on class-action lawsuits against OpenAI and others Isaiah Poritz, technology reporter for Bloomberg Law James Grimmelmann, professor of digital and information law at Cornell Tech and Cornell Law School Learn more about your ad choices. Visit megaphone.fm/adchoices

When Scott Griffin visited the Haunted Trail, he expected to be scared. But he did not expect what happened after he thought the scare was over. This special Halloween episode of UnCommon Law tells the true story of a man terrorized by a haunted house attraction. Griffin bought a ticket to a haunted house — but ended up getting more than he bargained for: two broken wrists. He sued for negligence and assault. Can someone who paid to be frightened sue when things go too far?  Guests: P. Christopher Ardalan, attorney at Ardalan & Associates, PLC Larry Levine, law professor at the University of the Pacific McGeorge School of Law Learn more about your ad choices. Visit megaphone.fm/adchoices

In the conclusion of UnCommon Law's season-long exploration of noncompete agreements, we look at the Federal Trade Commission's authority to ban the clauses nationwide. We've reviewed how the ban would work and explored the policy arguments for and against it. Now we delve into a more fundamental question: Does the FTC even have the power to make a substantive rule like this one? It's been 50 years since the DC Circuit Court of Appeals ruled that the FTC has substantive rulemaking power. We'll learn about that case — National Petroleum Refiners Association v. FTC — we'll find out why it's so important to the FTC, and we'll hear why many believe it would not turn out the same way today. But that's not all! Even if courts follow National Petroleum, could the FTC get past the major questions doctrine? The season finale of UnCommon Law features: Richard Pierce, professor at the George Washington University Law School Dan Papscun, antitrust reporter for Bloomberg Law Sean Heather, senior vice president at the U.S. Chamber of Commerce Sandeep Vaheesan, legal director at the Open Markets Institute Orly Lobel, professor at the University of San Diego School of Law Matt's baby Learn more about your ad choices. Visit megaphone.fm/adchoices

The Supreme Court has effectively ended the use of race as a factor in college admissions. In a 6-3 ruling, along ideological lines, the divided Supreme Court struck down the admissions programs of Harvard and the University of North Carolina, which both used race as a factor in their admissions process. Today, on this special edition of UnCommon Law, we'll learn how the court came to its decision. And: Did the majority leave the door open for colleges to still consider race in some circumstances? We'll learn why some supporters of affirmative action still have a glimmer of hope. Featuring: Ted Shaw — Professor at the University of North Carolina, and past president of the NAACP's Legal Defense Fund Michelle Adams — Professor at the University of Michigan Law School Lee Bollinger — Outgoing president of Columbia University, and former president of the University of Michigan Edward Blum, president of Students for Fair Admissions Learn more about your ad choices. Visit megaphone.fm/adchoices

In its proposal to ban noncompete agreements nationwide, the Federal Trade Commission has touted the potential benefits to workers and the economy. But how would a ban impact business owners? This week on UnCommon Law, part four of our series on the agency's proposal. Why are so many business owners so adamant that they need to be able to use noncompetes, even when other legal tools — like trade secret laws and nonsolicitation agreements — might protect companies without limiting employee mobility? Featuring: Russell Beck, trade secrets and employment mobility lawyer; founder at Beck Reed Riden LLP Paul Dacier, EVP and general counsel at Indigo Agriculture; formerly EVP and general counsel at EMC Corporation Syreeta Mitchell, president and CEO of MPower Logistics Learn more about your ad choices. Visit megaphone.fm/adchoices

California is one of just three states where noncompete agreements are almost completely banned. California is also the home of Silicon Valley, the global hub of technological innovation. Is that just a coincidence? Or would Silicon Valley be as successful even if noncompete agreements were allowed? This week on UnCommon Law, part three of our ongoing series on the Federal Trade Commission's proposal to ban noncompete agreements nationwide. Is California's ban on noncompete agreements really a key component to Silicon Valley's success? Guests: Evan Starr, professor at University of Maryland Margaret O'Mara, professor at the University of Washington Ronald Gilson, professor emeritus at Columbia Law School and Stanford Law School David Schultz, host of Bloomberg Law's On the Merits Learn more about your ad choices. Visit megaphone.fm/adchoices

This week on Uncommon Law: the second episode in our podcast series about the Federal Trade Commission's proposed nationwide ban on noncompete agreements. We'll look at one Minnesota hair salon and see how noncompete agreements often play out in the real world. What happens when employees leave the hair salon and try to strike out on their own? Guests: Heidi Hautala, a hair stylist in Minnesota  Evan Starr, professor at University of Maryland Emily Olson, a hair stylist in Minnesota Kylee Simonson, owner of Simonson's Salon & Spa Chris Penwell, attorney at Siegel Brill The case discussed in this episode is Simonson's Salon and Spa vs. Heidi Hautala, Docket No. 27-CV-15-5647 (Minn. Dist. Ct. Apr 03, 2015) Learn more about your ad choices. Visit megaphone.fm/adchoices

This season on UnCommon Law, we're exploring one of the most expansive Federal Trade Commission proposals of the last half century: a near-total nationwide ban on noncompete clauses. We'll examine arguments for the ban, and talk to workers who've had their livelihoods crushed by oppressive covenants not to compete. We'll look at arguments in favor of keeping noncompetes, and talk with business owners who say they're crucial for keeping trade secrets confidential and protecting business relationships. Finally, we'll explore a more fundamental question: Does the FTC even have the legal authority to do this? Our first episode explores how this unprecedented proposal came to be. To understand just how out-of-the-ordinary this proposal is, we'll journey into the history of the agency, whose past rulemakings got them labeled the "national nanny" by the Washington Post, and led to threats of defunding. Guests: Emily Olson, hair stylist Leah Nylen, Bloomberg News reporter Sandeep Vaheesan, legal director of the Open Markets Institute Evan Starr, professor at the University of Maryland Learn more about your ad choices. Visit megaphone.fm/adchoices

This season on UnCommon Law, we're exploring one of the most expansive Federal Trade Commission proposals in modern history: a nationwide ban on noncompete clauses. Coming May 31st. Learn more about your ad choices. Visit megaphone.fm/adchoices

It's been almost 20 years since Justice Sandra Day O'Connor, intentionally or not, set an affirmative action countdown in motion. On Oct. 31, the Supreme Court heard arguments that Harvard and the University of North Carolina go too far in their use of race in admissions. Will the diversity rationale — the heart of affirmative action defenses since 1978 — convince this staunchly conservative court? Also, while diversity has been the reason affirmative action has survived legal tests — was it ever the best reason, under the Constitution, for affirmative action? Or have advocates been hamstrung by an argument that doesn't go far enough? Are race-conscious admissions policies about to fall? The conclusion to our four-part series on affirmative action at the Supreme Court. Guests: Edward Blum, president of Students for Fair Admissions William Lee, partner at WilmerHale Kimberly Robinson, Supreme Court reporter for Bloomberg Law Lee Bollinger, president of Columbia University Ted Shaw, professor at the University of North Carolina School of Law Michelle Adams, professor at the University of Michigan Law School Learn more about your ad choices. Visit megaphone.fm/adchoices

For decades, over multiple decisions, the Supreme Court has been clear: The U.S. Constitution allows colleges to take race into account when they craft their incoming classes. And yet race-conscious admissions policies continue to face attacks. Today, on part three of our four-part series on affirmative action, we'll meet the man who has perhaps done more than any other in recent memory fighting to end the use of race in America's public policies. Will Edward Blum be successful in convincing today's solidly conservative high court to end affirmative action in education? Guests: Edward Blum, president of Students for Fair Admissions Ted Shaw, professor at the University of North Carolina School of Law Garrett Epps, professor at the University of Oregon School of Law Learn more about your ad choices. Visit megaphone.fm/adchoices

In 1978, the Supreme Court allowed colleges to take race into account when crafting their incoming classes. Throughout the '80s and '90s, that's what many schools did: To get a diverse incoming class, universities used race as one factor among many. But some schools get a lot of applicants — tens of thousands of students applying for just a few thousand spots. How do you complete an individualized review of so many people? How do you make sure you consider race consistently across those tens of thousands? Is there a way to streamline the process while still complying with what Justice Lewis F. Powell, Jr. said the Equal Protection Clause requires? This is the second episode of UnCommon Law's three-part series about the Supreme Court's biggest affirmative action in education cases. In the first episode we looked at the 1978 case of Allan Bakke, an applicant to medical school who was denied admission. In this episode, we explore the 2003 cases of Gratz v. Bollinger and Grutter v. Bollinger. Guests include: Diego Bernal — Texas state representative and former president of the Latino Law Students Association at the University of Michigan Law School Michelle Adams — Professor at the University of Michigan Law School Greg Stohr — Supreme Court reporter for Bloomberg News Ted Shaw — Professor at the University of North Carolina, and former president of the NAACP's Legal Defense Fund Terence Pell — President of the Center for Individual Rights Marvin Krislov — President of Pace University, and former vice president and general counsel at the University of Michigan Lee Bollinger — President of Columbia University, and former president of the University of Michigan Agnes Aleobua — Principal of Citizens Academy Glenville in Cleveland, and former student intervenor at the University of Michigan Christina Rodriguez — Professor at Yale Law School and former clerk to Supreme Court Justice Sandra Day O'Connor Learn more about your ad choices. Visit megaphone.fm/adchoices

For more than 50 years, colleges and universities around the country have taken race into account as they craft their incoming classes. But now a pair of lawsuits could change the face of higher education in this country. It's the biggest challenge to affirmative action in a generation. And, given the makeup of this Supreme Court, it is very likely affirmative action in college admissions could be found unconstitutional. Over three episodes, we will explore the legal issues around affirmative action in higher education. Does the equal protection clause of the Fourteenth Amendment prohibit all discrimination based on race? Or is benign discrimination permissible — taking race into account in order to help groups that have been marginalized? Does the constitution leave room to remedy society's ills? In this episode, we explore the 1978 case of Regents of the University of California v. Bakke — the first challenge to affirmative action decided by the Supreme Court. Guests include: * Robert “Bo” Links — Attorney for Allan Bakke * Michelle Adams — Professor at the University of Michigan Law School * Ted Shaw — Professor at the University of North Carolina, and former president of the NAACP's Legal Defense Fund * Garrett Epps — Professor at the University of Oregon School of Law * John Jeffries — Former dean of the University of Virginia School of Law Produced and hosted by Matthew S. Schwartz. To comment on this episode, tag @BLaw and @SchwartzReports on Twitter! Learn more about your ad choices. Visit megaphone.fm/adchoices

A pair of lawsuits has made its way to the Supreme Court — and just who gets into which college could change dramatically. This season on UnCommon Law, we'll explore the arguments — and the people — driving this latest battle over affirmative action. Does the Fourteenth Amendment's Equal Protection Clause prohibit all discrimination based on race? Can the Constitution be used to remedy society's ills? Coming October 25th, part one of a three-part series on affirmative action, from Bloomberg Industry Group. For more: https://news.bloomberglaw.com/podcasts/uncommon-law

Law firms have a gender equity problem. Data has shown that women struggle to reach the upper levels of the profession, and that those who do had to work harder than their male counterparts. For example, two thirds of female attorneys say they've been perceived as less committed to their careers, compared with just two percent of male attorneys, according to a 2019 ABA survey. The reasons why aren't a mystery: the pay gap, the "motherhood penalty," legacy origination, a dearth of male mentors, and sexism, to name a few. But what are the solutions? If the ideal, female-friendly law firm could be created from scratch, with an infinite amount of start-up capital, how would it be done? We posed that question to nearly a dozen people in the legal industry, including diversity consultants, law firm partners, ex-partners, associates, and women who were on track to make partner but felt they were forced to leave. In this podcast, they tell us what they'd prioritize and some of the challenges that can't be fixed with money. Do you have an idea of how to create a women-friendly law firm? Share your thoughts with us by clicking here.

In a landmark 2nd Amendment decision on Thursday, the Supreme Court struck down New York's gun licensing law. It's a decision that transforms where and when a gun can be carried. And, for the first time, the Court recognized a constitutional right to carry a gun outside of the home, in public. If you know this is a big deal, but you're not sure why, or you just want a refresher on how we go here, we've got you covered. Today we're releasing an episode of our Cases & Controversies podcast for our [Un]Common Law listeners. This episode was originally released in November, just after oral arguments in the case. Bloomberg Law's Kimberly Robinson and Jordan Rubin explain what it's all about and why it is a "landmark decision." And, for the latest on this case and the Supreme Court go to news.bloomberglaw.com.

The new era of name, image, and likeness in college sports has seen rapid change. For instance, initially athletes were signing deals directly with brands and companies. Now, so-called “NIL collectives” are amassing multi-million-dollar funds to attract star recruits. Critics say these funds are being used as back-door recruiting inducements which violate the NCAA's interim NIL policy. Many college coaches and administrators have complained that the interim policy is vague and unenforceable. But that may be just the beginning thanks to several new cases progressing in both federal court and at the National Labor Relations Board. Either could potentially alter the landscape even further—making college sports a completely free market or redefining some college teams as employees of the schools they play for. In the final episode of our two-part series on NIL in college sports we speak with: Stewart Mandel, editor-in-chief of college football coverage at the Athletic. Jeffery Kessler, co-executive chairman at Winston and Strawn, and co-lead counsel for the athletes in NCAA vs. Alston. Ekow Yankah, professor of Law at Yeshiva University's Cardozo School of Law and author of “Is NIL Destroying College Sports.” Audrey Anderson, chair of the higher education practice group at Bass Berry & Sims.

College sports is closing out the first year of the name, image and likeness era for athletes. Since July 1 2021, athletes have been free to earn money from marketing deals on their NIL rights, including through endorsements, appearances, modeling, and hosting camps. One UCLA basketball player even launched his own cryptocurrency. The right of publicity now belongs to collegiate athletes. This comes after decades of strictly enforced rules barring student athletes from receiving any compensation beyond the value of their scholarships. NIL rights mark an inflection point in both college sports broadly, as well as the decades-long legal battle to allow athletes to share in the billion-dollar collegiate sports industry. But lingering questions remain. Even among those who say athletes deserve to earn money, some say the current NIL state laws and NCAA guidelines aren't working. In this first episode of a two-part series, the [Un]Common Law podcast will examine the NIL landscape, some of the cases that led to this new era, the patchwork of state laws, and the legal and policy concerns going forward. In this episode we speak with: Kyle Jahner, a reporter covering trademark and intellectual property for Bloomberg Law. Tim Nevious, a sports attorney who was part of the original legal team that brought the Alston vs. NCAA case. David McGriff, an private practice attorney who specializes in setting up NIL deals.  

On January 1, Ben Wilson will officially conclude his tenure as chairman of Beveridge & Diamond and retire from the firm. As first reported by Bloomberg Law, Wilson, affectionately regarded as the dean of Black partners at major law firms, announced his retirement this fall after 45 years in legal practice, 35 of those years with the firm. Wilson became chairman of the Washington, D.C.-based Beveridge & Diamond in 2017, 31 years after entering the firm as its first Black partner. But his impact stretches far beyond his firm. Over the years, the Harvard Law graduate has mentored generations of Black and other diverse law firm partners, general counsel and law students across the country, becoming known to many as a teacher, a coach and a friend. In 2008, founded the Diverse Partners Network, which he'll continue to lead after retirement, renamed as the Diverse Lawyers Network. He is also the founder of the African American Managing Partners Network, a tight-knit network of African American leaders of major law firms, and the African American General Counsel Network. Lisa Helem, Bloomberg Law's Executive Editor for Strategic Initiatives, spoke with Wilson about law firm leadership, his formative years growing up in Jackson, Mississippi, his work to improve diversity in the legal profession and his legacy. We present that conversation here as a special episode of our award-winning “Black Lawyers Speak” series, hosted on UnCommon Law.

Some frustration with the bar exam comes not just because it's a hard test. Differences in state licensing requirements can mean attorneys may have to take the bar exam multiple times. In the final episode of [Un]Common Law's three-part look at the bar exam, we ask why can't there be one bar exam for all U.S. jurisdictions? A national bar exam that eliminates the need for a patchwork of state tests? The answer turns in part on the test called the Uniform Bar Exam or UBE. Developed by the National Conference of Bar Examiners to solve the issue of portability, the UBE allows participant jurisdictions to accept exam scores from other participating jurisdictions. Still, some critics, such as the New York State Bar Association, have taken aim at the UBE for being “too universal,” and now recommend that their state withdraw. In this episode we speak with: Alex Su, head of community development at IronClad. Alan Scheinkman, retired judge who was appointed chair of a special task force of the New York State Bar Association Richard Maltby, a Florida-based attorney for Sandberg Phoenix & von Gontard, P.C. Natalie Rodriguez, associate professor of law at Southwestern Law School and member of California's blue-ribbon commission on the future of the state bar exam. Cynthia Martin, chief judge on the Missouri Court of Appeals for the Western District and former chair of the NCBE task force charged with recommending the “next generation” changes to the Uniform Bar Exam.

In the wake of the Covid-19 pandemic, five U.S. jurisdictions opted to suspend their July 2020 bar exams. Instead, these jurisdictions granted licensure to new attorneys through "diploma privilege.” That's the practice of admitting new attorneys to the state bar, and allowing them to practice law, contingent on their graduation from an ABA-accredited law school only. It does not require taking and passing a bar exam. Wisconsin is currently the only state to permanently offer diploma privilege, and it is only available to graduates of its two in-state law schools, Marquette University Law School and University of Wisconsin Law School. Critics of the bar exam have long argued that a timed test, based on short-term memorization of how to apply a vast amount legal rules, is not a true measure of legal competency. And now, with a string of remote testing snafus during the pandemic, many in the legal community are asking whether diploma privilege is a better option. Standing in the way of these fundamental changes are many state supreme courts and bar associations who have authority over who can practice law in their jurisdictions. Additionally, those opposed to diploma privilege argue that, whether it's accounting, medicine, or law, licensure exams are there for a good reason—to protect the public from incompetent practitioners. In this second episode of our podcast series on the bar exam, [Un]Common Law will explore the arguments both for and against diploma privilege. In this episode we speak with: Sam Skolnik, Washington-based legal industry reporter for Bloomberg Law. Efrain Hudnell, a 2020 graduate of the Seattle University School of Law, now an attorney with King County prosecuting attorney's office in Seattle. Daniel Tokaji, Dean of the University of Wisconsin Law School. David Wiggins, retired justice of the Iowa Supreme Court. David Krutz, managing partner in the Milwaukee office of Michael Best and Friedrich.

In all U.S. jurisdictions except Wisconsin, passing a bar exam is a requirement to obtain a license to practice law. However, the Covid-19 pandemic forced some state authorities to adopt alternative paths to licensure for recent law school graduates. In the wake of those changes, criticism of the bar exam has blossomed into a movement to reform or eliminate the test altogether. These critics argue that the bar exam, “is an outmoded, discriminatory, and simply ineffective as a barometer of legal competence,” according to Bloomberg Law's Sam Skolnik. While defenders of the status-quo argue that the bar is still the best way to evaluate would-be attorneys on the fundamental legal concepts that every lawyer should know. In this first of a three-part series on the bar exam, the [Un]Common Law podcast will look at the arguments for and against preserving the bar exam. In this episode we speak with: Alexis Ahlzadeh, recent graduate of Emory Law School, now an associate attorney with the Findling Law Firm based in Atlanta, GA. Joe Patrice, a senior editor and writer at Above the Law. Roger Schechter, professor of law at George Washington University Law School. Johanna Miller, director of the Education Policy Center at the ACLU of New York.

Frances Haugen, the whistleblower whose revelations have prompted a congressional investigation into Facebook revealed herself publicly in an interview that aired on CBS on Sunday night. Haugen is the source of thousands of internal company documents that were leaked to U.S. lawmakers and the Wall Street Journal. A data scientist, Haugen was hired by Facebook in June of 2019 to lead the company's civic integrity team, which was charged with cracking down on hate speech and misinformation. In practice however, she said that the company chose to downplay or ignore its own evidence detailing the rampant spread of misinformation on its platforms, as well as harms to children and teens. Haugen's lawyers have filed at least eight complaints with the Securities and Exchange Commission, should the agency choose to bring charges against Facebook for withholding information and misleading investors. The public outcry over Facebook is not new. The social media giant has been on the receiving end of media exposes and Congressional inquiries for years. Last July, [Un]Common Law released a podcast series, called “Unchecked” looking into the legal and regulatory framework for social media, as well as changes to laws that could be implemented. In this special episode of [Un]Common Law, Naomi Nix, a Washington, DC based reporter for Bloomberg News talks about the latest revelations. 

Concerns over the harmful impact of social media are rising to a fever pitch. In the past decade, everyone from conspiracy theorists to foreign governments have used social media to spread election disinformation, sow discord, and peddle viral conspiracies. This month, the Biden administration and the U.S. Surgeon General accused social media platforms of being the primary source of misinformation about Covid-19 vaccines. Likewise, a July 6 paper warned that the invention of social media could cause human society to fail “catastrophically, unexpectedly, and without warning” if it continues down its current path. In the fourth and final episode in our UnChecked series, we are looking at some of the public-policy solutions being proposed to rein in the threats posed by Big Tech and social media. In this episode of [Un]Common Law we speak with: Courtney Rozen, White House reporter for Bloomberg Law Francis Fukuyama, author and professor of political science at Stanford University Alex Engler, AI Data & Democracy Fellow at Brookings Institution Tom Wheeler, former chairman of the FCC and visiting fellow at Brookings Institution Martha Minow, professor of law at Harvard University

Cracking down on large tech companies may be one of the few remaining areas of political consensus in Washington D.C. However, many legal experts caution that antitrust cases could take years to complete and the outcomes are far from certain. Still others claim that the recent focus on antitrust is more about punishing tech platforms for being successful. They argue that it would have little impact on more pressing concerns, such as the spread of misinformation, the erosion of privacy, and the acceleration of political polarization. In this episode of [Un]Common Law we speak with: Derek Bambauer, professor of law at the University of Arizona, where he teaches internet law and intellectual property. Sally Hubbard, attorney and director of enforcement strategy at the Open Markets Institute. Chris Koopman, executive director at the Center for Growth and Opportunity at Utah State University. David McLaughlin, reporter for Bloomberg News covering antitrust, finance, and mergers and acquisitions. 

Permanently revoking users' access to social media platforms— a practice known as “deplatforming “— isn't a new concept, but the high-profile ban of President Donald Trump has raised new questions about censorship and free speech in the internet age. For years Twitter famously clung to its identity as “the free speech wing of the free-speech party.” Meanwhile, Facebook employed a policy that mostly excluded politicians from content moderation rules that applied to other users. Yet, within days of the attack on the Capitol on Jan. 6, Twitter, Facebook, and other social media platforms suspended the accounts of the president of the United States. First Amendment lawyers point out that the Constitution protects against government censorship of speech. However, social media platforms are businesses run by companies. They have terms of service and aren't obligated to provide a platform to anyone. Still, whether one views the deplatforming of a U.S. president as necessary or not, many say the more important question is whether tech companies should be the ones deciding where to set the boundaries for online speech. In this episode of [Un]Common Law we speak with: Katie Fallow, senior staff attorney at the Knight First Amendment Institute at Columbia University. Steve Barnett, professor of communications at the University of Westminster in London. Lyrissa Lidsky, Dean of University of Missouri Law School. Jessica Melugin, director of the Center for Technology & Innovation at the Competitive Enterprise Institute.

In the months since the January 6 attack on the Capitol, one thing people on both sides of the political aisle seem to agree on, is that social media bears at least some responsibility for spreading the lies that led to the attack. But, is that true? And if it is, even a little bit, what should lawmakers do about it? Those questions are what [Un]Common Law will explore in our new series called “UnChecked.” A look at the legal doctrines, case history, and legislation that gave birth to the internet as we know it. This first episode is all about Section 230, the law that makes it possible for companies like Facebook and Twitter to publish content created by their users. Specifically, Section 230 states that, "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." In other words, online platforms can't be held liable for the speech that is posted on their sites. Almost as importantly, Section 230 also gives those platforms the freedom to moderate, or remove content as they see fit. Many Republicans say Section 230 enables tech companies to censor conservative voices. While some Democrats say the law has allowed platforms to wash their hands of harms associated with hate speech, terrorism, and harassment. Many lawmakers, from both parties, have expressed a willingness to make changes to the status quo, but what those changes look like has yet to be determined. In this episode of [Un]Common Law we hear from: Gigi Sohn, former FCC Counselor, now a fellow at the Georgetown Law Institute for Technology Law and Policy. Jeff Kosseff, professor of cybersecurity law at the U.S. Naval Academy and author of a book about Section 230 called, “The 26 Words That Created the Internet.” Rebecca Kern, Technology and Cyber Policy reporter for Bloomberg Government. Jessica Melugin, director of the Center for Technology & Innovation at the Competitive Enterprise Institute. Elizabeth Banker, former Deputy General Counsel at the Internet Association. Nabiha Syed, attorney and president of The Markup, an investigative journalism startup that explores how powerful actors use technology to reshape society.

For our next season of UnCommon Law, we’re wading into the thorny debate over Big Tech and social media. Companies like Facebook, Google, Amazon, Twitter are much bigger than they were 20 years ago, but is this a problem? Is Big Tech impinging on your right to free speech? That depends on who you ask. And what about the increased influence of hate-speech, conspiracy theories and disinformation that spread like wildfire online. Despite bipartisan consensus that something needs to be done, what that something actually might look like differs wildly. So, we’re asking experts, and trying to connect the dots to find out what new internet regulation might look like.  We’re calling this series, UnChecked, and it will be reported out over a series of weekly episodes starting June 14th. 

Earlier this year [Un]Common Law published a podcast series looking at the experiences of African American lawyers and judges working in the legal industry—which, to this day, remains one of the least diverse professions in America. Now, more than a year since George Floyd’s murder, and the wave of soul-searching in the legal industry that followed, 16 of the nation’s largest law firms, nine of which are in the Am Law 200, still do not have even a single Black partner according to a report from the American Lawyer. Back in January we interviewed former U.S. Attorney General Eric Holder, now a partner with Washington DC-based, Covington & Burling as part of [Un]Common Law's “Black Lawyers Speak Series," and today we are releasing the full Q&A as a bonus episode from that series. 

In the wake of Derek Chauvin’s conviction in the murder of George Floyd, lawmakers in both parties said they were “cautiously optimistic” that the trial could provide new momentum to overcome the political hurdles that have stymied efforts at policing reform. In a speech before a joint session of Congress on Wednesday, President Joe Biden formally called on lawmakers to resurrect the George Floyd Justice in Policing Act, which among other things, would end the legal practice of granting qualified immunity to police officers. Qualified immunity was considered a relatively obscure legal doctrine known only to civil-rights lawyers and legal scholars, but after the death of George Floyd, it has now become a common topic in the media, cities, and state legislatures across the country. In this episode of the UnCommon Law Podcast, we speak with Alexander Reinert, a professor of law at the Cardozo School of Law at Yeshiva University, Clark Neily, a senior vice president for criminal justice at the Cato Institute, and Anya Bidwell, an attorney with the nonprofit Institute for Justice.

It took the jury less than 11 hours, to pronounce Derek Chauvin guilty on all three counts of murder in the second and third degree, as well as second-degree manslaughter. While there are many shoes yet to drop before this case is finally complete. Including sentencing, and there will surely be an appeal after that. Also, attention will now shift toward the criminal trial, later this summer, of the three other Minneapolis Police Department officers who were also present during Floyd’s murder. The [Un]Common Law podcast now turns to the attorneys for their insights on the verdict. In this episode host Adam Allilngton speaks with Barbara McQuade, former U.S. Attorney and now a professor at the University of Michigan Law School, Somil Trivedi, a senior staff attorney with the ACLU’s Criminal Law Reform Project, and Tiffany Jeffers, an associate professor an associate professor of law and legal practice at Georgetown University Law Center.

With closing arguments completed on Monday, April 19, former police officer Derek Chauvin’s fate rests in the hands of a jury of his peers. Chauvin is charged with second-degree murder, third-degree murder and second-degree manslaughter. Joining host Adam Allington to discuss closing arguments in the nation’s most intensely-watched police brutality trial since Rodney King is Kami Chavis, a professor of law and director of the criminal justice program at Wake Forest University School of Law.