Category: News Feeds

In
a
letter
written
on
21
November
2024
to
the
Ministry
of
Finance,
Economic
Development
and
Investment
Promotion,
ZADHR,
which
is
represented
by
their
lawyer, Precious
Chakasikwa of Zimbabwe
Lawyers
for
Human
Rights,
asked
the
Ncube-led
ministry
to
provide
it
with
an
account
of
how
much
special
surtax
on
sugar
content
in
beverages
had
been
collected
from
9
February
2024,
when
government
gazetted
Statutory
Instrument
16/24,
the
Customs
and
Excise
(Tariff)
(Amendment)
Notice,
2024
(No.
5).

ZADHR
also
wants
the
Ministry
of
Finance,
Economic
Development
and
Investment
Promotion
to
furnish
it
with
an
account
of
what
cancer
drugs
and
equipment
have
been
procured
since
the
introduction
of
the
sugar
tax
and
the
list
of
hospitals
to
which
these
have
been
distributed
to.

The
doctor’s
association
made
the
request
for
access
to
the
information
in
terms
of
the
provisions
of
section
7
of
the
Freedom
of
Information
Act.

ZADHR’s
request
is
aimed
at
promoting
transparency
and
accountability
in
the
use
of
public
funds.

In
February,
government introduced
a
levy
on
sugary
beverages
claiming
that
this
was
aimed
at
discouraging
people
from
consuming
too
much
sugar,
which
it
blamed
for
causing
some
forms
of
cancer.

Ncube
justified
the
introduction
of
the
sugar
tax
as
a
response
to
growing
concerns
on
the
adverse
effects
of
consumption
of
sugar,
stating
that
the
funds
generated
from
the
levy
would
be
ring-fenced
for
therapy
and
procurement
of
cancer
equipment.

Post
published
in:

Featured

The
Right
to
challenge
Unconstitutional
Laws
and
Conduct
:
The
Constitutional
Court’s
Ruling

In
a
judgment
delivered
earlier
this
year, Combined
Harare
Residents’
Association
&
Others
v
Minister
of
Local
Government,
Public
Works
and
National
Housing [link],
the
Constitutional
Court
considered
the
relationship
between
local
authorities
and
the
central
government. 
We
analysed
the
Court’s
judgment
on
this
topic
in
Constitution
Watch
5/2024 [link].

In
the
course
of
its
judgment
the
Court
issued
progressive
rulings
on
the
right
of
citizens
to
challenge
unconstitutional
conduct
and
defend
the
Constitution,
and
we
shall
deal
with
that
aspect
of
the
judgment
in
this
bulletin.

Issues
in
the
Case

The
Constitutional
Court
was
being
asked
to
confirm
an
order
of
the
High
Court
declaring
section
314
of
the
Urban
Councils
Act
[which
empowers
the
Minister
responsible
for
local
government
to
overturn
decisions
and
resolutions
of
local
authorities]
to
be
unconstitutional
and
void.

Before
deciding
the
main
issue
–
i.e.
whether
section
314
is
unconstitutional
–
the
Constitutional
Court
had
to
decide
two
preliminary
questions:

• First,
  did
  the
  High
  Court
  have
  jurisdiction
  to
  make
  the
  order
  it
  did?
• Secondly,
  did
  the
  applicants
  have
  a
  right
  to
  challenge
  the
  constitutional
  validity
  of
  section
  314
  since
  they
  had
  not
  shown
  that
  any
  of
  their
  fundamental
  rights,
  guaranteed
  by
  the
  Declaration
  of
  Rights
  in
  the
  Constitution,
  had
  been
  infringed?

The
Constitutional
Court
answered
both
these
questions
affirmatively: 
the
High
Court
had
jurisdiction
to
make
its
order
and
the
applicants
had
a
right
to
challenge
the
constitutionality
of
section
314. 
The
Court
was
not
entirely
unanimous,
however. 
Judge
Garwe
delivered
a
dissenting
judgment
in
which
he
considered
that
the
High
Court
should
have
declined
to
make
the
order
because
the
applicants
had
not
pleaded
their
case
properly
and
had
not
shown
there
was
an
actual
dispute
between
the
parties. 
The
rest
of
the
judges
on
the
Court
did
not
take
so
narrow
a
view
however,
as
we
shall
explain
below.

Jurisdiction
of
the
High
Court

All
the
judges
of
the
Constitutional
Court
were
agreed
that
the
High
Court
as
a
general
rule
has
jurisdiction
to
enforce
the
Constitution
directly; 
this
jurisdiction
is
given
by
section
171(1)(c)
of
the
Constitution. 
The
only
exceptions
are
set
out
in
section
167(2)
of
the
Constitution,
which
gives
the
Constitutional
Court
exclusive
jurisdiction:

• to
  advise
  on
  the
  constitutionality
  of
  proposed
  legislation,
  where
  the
  legislation
  has
  been
  referred
  to
  the
  Constitutional
  Court
  by
  the
  President
  or
  by
  a
  Vice-President
  or
  Minister
• to
  decide
  disputes
  in
  presidential
  elections
  and
  disputes
  over
  the
  qualifications
  of
  a
  Vice-President,
  and
• to
  decide
  whether
  Parliament
  or
  the
  President
  has
  failed
  to
  fulfil
  a
  constitutional
  obligation.

In
all
other
cases,
the
High
Court
has
jurisdiction
to
enforce
the
Constitution
and
decide
applications
challenging
the
constitutional
validity
of
legislation.

Grounds
on
which
the
Constitutionality
of
Laws
can
be
Challenged

All
the
judges
of
the
Constitutional
Court
agreed
that
an
applicant
who
challenges
the
constitutional
validity
of
a
law
does
not
have
to
show
that
his
or
her
rights
under
the
Declaration
of
Rights
have
been
infringed
by
the
law.

Instead,
the
majority
of
the
Court
held
that
the
constitutionality
of
a
law
can
be
challenged
by
persons
relying
on
section
2(1)
of
the
Constitution
or,
more
broadly,
on
the
principle
of
legality.

Section
2(1)
of
the
Constitution declares
the
Constitution
to
be
the
supreme
law
and
invalidates
any
law,
practice,
custom
or
conduct
inconsistent
with
it. 
The
majority
of
the
judges
held
that
section
2(1)
arguably
implies
that
anyone
who
can
show
some
connection
to
a
law,
practice,
custom
or
conduct
is
entitled
to
approach
a
court
to
have
it
declared
invalid
on
the
ground
that
it
is
inconsistent
with
the
Constitution.

The
principle
of
legality:  Under
this
principle,
administrative
conduct
is
legitimate
and
valid
only
if
it
is
authorised
by
a
law; 
anything
done
in
contravention
of
a
statute
or
the
Constitution
is
ultra
vires
and
void. 
This
principle
gives
the
High
Court
jurisdiction
to
rule
on
the constitutional validity
of
laws.

Legal
Standing
of
Persons
to
Challenge
the
Constitutionality
of
Laws

Under
the
common
law,
only
persons
who
can
show
a
direct
or
substantial
interest
in
a
legal
issue
have
the
right
to
apply
to
a
court
for
the
issue
to
be
decided. 
The
right
to
challenge
the
constitutional
validity
of
laws
is
much
wider,
according
to
the
Court:

“direct
challenges
to
assert
the
supremacy
of
the
Constitution
must
be
open
to
all
citizens
who
are
civic
minded
and
wish
to
see
the
rule
of
law
prevail. 
Only
those
who
bring
frivolous
and
vexatious
proceedings
without
any
intention
of
obtaining
relief
from
such
proceedings
must
be
denied
standing
and
audience
by
the
courts.”

Applicants
do
not
have
to
show
that
one
of
their
fundamental
rights,
guaranteed
by
the
Declaration
of
Rights,
has
been
infringed
by
the
law
that
is
being
challenged.

Judge
Patel
suggested
that
the
Court
should
give
rulings
on
constitutional
questions
of
paramount
public
and
national
importance,
even
on
the
application
of
persons
who
cannot
show
a
direct
and
substantial
interest
in
the
issues
in
dispute.

Comments

The
Constitutional
Court’s
rulings
on
the
jurisdiction
of
the
High
Court
to
decide
constitutional
issues,
and
the
right
of
parties
to
bring
constitutional
issues
to
court
in
the
public
interest,
are
a
welcome
departure
from
the
Court’s
previous
decisions,
which
by
narrowly
insisting
on
procedural
correctness
allowed
the
Court
to
avoid
deciding
important
constitutional
issues.

Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
for
information
supplied

Post
published
in:

Featured

Local
Authorities
and
Central
Government
:
The
View
From
the
Constitutional
Court

Disclosures
of
mismanagement
in
the
governance
of
Harare,
and
attempts
by
the
Minister
of
Local
Government
to
interfere
in
the
City’s
affairs,
make
it
topical
to
look
at
what
the
Constitution
says
about
the
relationship
between
local
authorities
and
central
government,
and
how
the
Constitutional
Court
has
interpreted
the
Constitution
in
this
regard.

The
Constitution
and
Local
Authorities

Section
3
of
the
Constitution
declares
that
devolution
and
decentralisation
of
governmental
powers
are
principles of
good
governance,
and
good
governance
is
itself
declared
by
section
3
of
the
Constitution
to
be
a
foundational
value of
Zimbabwe. 
More
specifically,
Chapter
14
of
the
Constitution
deals
with
provincial
and
local
government,
emphasising
the
importance
of
devolving
powers
and
responsibilities. 
Thus
section
264(1)
says:

“Wherever
appropriate,
governmental
powers
and
responsibilities
must
be
devolved
to
…
local
authorities
which
are
competent
to
carry
out
those
responsibilities
efficiently
and
effectively.”

Subsection
(2)
of
the
section
explains
the
reasons
for
devolving
powers
and
responsibilities:

“(a)
to
give
powers
of
local
governance
to
the
people
and
enhance
their
participation
in
making
decisions
affecting
them;

 (b)
to
promote
democratic,
effective,
transparent,
accountable
and
coherent
government
in
Zimbabwe;

 (c)
to
preserve
and
foster
the
peace,
national
unity
and
indivisibility
of
Zimbabwe;

 (d)
to
recognise
the
right
of
communities
to
manage
their
own
affairs
and
to
further
their
development;

      
…”

Section
276(1)
goes
on
to
say:

“Subject
to
this
Constitution
and
any
Act
of
Parliament,
a
local
authority
has
the
right
to
govern,
on
its
own
initiative,
the
local
affairs
of
the
people
within
the
area
for
which
it
has
been
established,
and
has
all
the
powers
necessary
for
it
to
do
so.”

There
has
to
be
a
balance
between
the
powers
of
central
government
and
those
of
local
authorities. 
While
local
authorities
must
be
allowed
to
govern
local
affairs
on
their
own
initiative,
they
cannot
be
given
complete
autonomy. 
The
central
government
has
a
duty
to
govern
the
country
as
a
whole,
and
its
laws
must
be
applicable
to
everyone
wherever
they
live. 
Local
authorities
cannot
have
such
complete
autonomy
that
they
override
national
laws. 
On
the
other
hand,
laws
made
by
the
central
government
–
Acts
of
Parliament
–
must
not
unduly
restrict
the
powers
of
local
authorities
to
regulate
their
local
affairs. 
As
we
have
said,
there
has
to
be
a
balance.

The
Urban
Councils
Act

The
Urban
Councils
Act,
as
its
name
indicates,
regulates
the
affairs
of
urban
local
authorities. 
It
long
predates
the
Constitution
and
pays
little
regard
for
local
autonomy
–
so
little
regard
that
it
gives
the
Minister
of
Local
Government
very
wide
powers
to
control
the
activities
of
urban
councils. 
For
example:

• Under
  section
  4A
  the
  Minister
  can
  appoint
  up
  to
  one-third
  of
  the
  councillors
  of
  any
  local
  authority,
  who
  hold
  office
  at
  the
  Minister’s
  pleasure.
  [section
  274(2)
  of
  the
  Constitution,
  on
  the
  other
  hand,
  says
  that
  councillors
  are
  to
  be
  elected
  by
  voters
  in
  the
  areas
  concerned].
• Under
  section
  206
  of
  the
  Act
  the
  Minister
  can
  direct
  councils
  to
  establish
  townships
  and,
  if
  they
  fail
  to
  do
  so,
  he
  or
  she
  can
  establish
  townships
  on
  their
  behalf.
• The
  Minister
  has
  a
  veto
  over
  councils’
  by-laws; 
  that
  is
  to
  say,
  the
  Minister
  must
  approve
  all
  their
  by-laws
  and
  under
  section
  232
  he
  or
  she
  can
  make
  by-laws
  on
  their
  behalf.
• Under
  section
  313
  the
  Minister
  can
  give
  councils
  policy
  directives
  “in
  the
  national
  interest”
  and
  councils
  must
  comply
  with
  them.
• Under
  section
  314
  the
  Minister
  can
  direct
  councils
  to
  reverse,
  suspend
  or
  rescind
  resolutions
  and
  other
  action
  taken
  by
  them.

The
validity
of
these
powers,
particularly
those
conferred
on
the
Minister
by
section
314
of
the
Act,
was
considered
by
the
Constitutional
Court
in
a
Veritas case
decided
earlier
this
year, Combined
Harare
Residents’
Association
&
Others
v
Minister
of
Local
Government,
Public
Works
and
National
Housing [link].

The
View
of
the
Constitutional
Court

The
Court’s
decision
was
not
unanimous,
with
two
judges
delivering
separate
dissenting
judgments. 
A
large
part
of
all
the
judgments
was
taken
up
with
issues
of
jurisdiction
–
the
power
of
courts
to
deal
with
constitutional
questions
–
and
the
right
of
citizens
to
challenge
the
constitutionality
of
legislation. 
On
these
matters
the
judges
made
far-reaching
pronouncements
which
we
shall
consider
in
another
Constitution
Watch. 
In
this
bulletin
we
shall
confine
ourselves
to
the
Court’s
decision
on
the
relationship
between
central
government
and
local
authorities.

The
majority
judgment

Judge
Makarau
delivered
the
judgment
of
the
majority
of
the
Court. 
The
main
points
she
made
were:

• One
  of
  the
  objectives
  of
  devolving
  powers
  set
  out
  in
  section
  264(2)
  of
  the
  Constitution
  is
  to
  enhance
  democratic
  participation
  in
  government
  by
  all
  citizens
  and
  communities. 
  Another
  objective
  is
  to
  preserve
  the
  national
  unity
  and
  indivisibility
  of
  Zimbabwe. 
  Both
  these
  objectives
  must
  be
  given
  their
  due
  weight.
• It
  is
  for
  central
  government
  to
  determine
  when
  devolution
  of
  power
  may
  occur
  and
  whether
  local
  authorities
  are
  competent
  to
  exercise
  the
  devolved
  power.
• The
  right
  of
  local
  authorities
  to
  run
  local
  affairs
  must
  be
  read
  subject
  to
  the
  Constitution
  and
  any
  Act
  of
  Parliament.
• The
  Minister
  responsible
  for
  local
  government
  must
  retain
  some
  residual
  oversight
  powers
  to
  ensure
  that
  the
  core
  values
  of
  devolution
  are
  upheld
  and
  that
  national
  unity
  is
  maintained.
• Hence
  the
  Minister
  must
  be
  able
  to
  direct
  councils
  to
  rescind,
  alter
  or
  suspend
  their
  resolutions
  under
  section
  314
  of
  the
  Urban
  Councils
  Act,
  but
  the
  Minister’s
  power
  under
  the
  section
  cannot
  be
  exercised
  on
  mere
  whim:

Ø The
exercise
of
the
power
must
be
informed
and
rational

Ø The
Minister
may
exercise
the
power
only
where
a
local
authority’s
resolution
or
decision
is
demonstrably
not
in
the
interests
of
the
inhabitants
of
the
area
or
is
not
in
the
public
or
national
interest

Ø The
Minister
must
give
reasons
for
exercising
the
power,
showing
how
the
local
authority’s
resolution
is
demonstratively
not
in
the
national
or
public
interest
or
in
the
interests
of
inhabitants
of
the
area,
and

Ø the
Minister’s
decision
is
subject
to
review
by
the
courts
in
terms
of
the
Administrative
Justice
Act.

There
is
one
further
point
which
the
learned
Judge
did
not
make,
but
which
is
implicit
in
her
reference
to
the
Administrative
Justice
Act: 
before
the
Minister
directs
a
council
to
rescind,
suspend
or
alter
a
resolution
the
Minister
must
inform
the
council
of
the
proposed
directive
and
give
councillors
an
opportunity
to
make
representations
as
to
why
the
directive
should
not
be
given
–
section
3(2)
of
the
Act.

The
minority
judgment

Judge
Patel,
giving
a
minority
judgment,
would
have
gone
further. 
He
considered
that
the
Minister’s
power
under
section
314
undermines
the
concept
of
devolution
laid
down
in
the
Constitution. 
While
the
Constitution
allows
central
government
to
supervise
local
authorities
to
ensure
effective
and
efficient
administration
throughout
the
country,
the
supervision
must
be
benign,
supportive
and
permissive
rather
than
oppressive. 
Section
314,
on
the
contrary,
is
bluntly
undemocratic. 
In
the
learned
Judge’s
view
therefore
the
section
is
patently
unconstitutional.

Comment

Veritas
prefers
the
view
expressed
by
Judge
Patel
(of
course
we
would
–
Veritas
sponsored
the
case
to
have
section
314
declared
unconstitutional
and
void). 
That
said,
the
judgment
of
the
majority
of
the
Court
is
authoritative
and
will
go
a
long
way
to
curtail
Ministerial
power
to
interfere
in
local
authority
affairs:

• Ministers
  will
  be
  able
  to
  overturn
  only
  those
  council
  decisions
  that
  are
  patently
  contrary
  to
  the
  public
  or
  national
  interest
  or
  contrary
  to
  the
  interests
  of
  people
  who
  live
  in
  the
  council
  area
• Ministers
  will
  have
  to
  consult
  councils
  before
  overruling
  their
  decisions
• Ministers
  will
  have
  to
  give
  reasons
  for
  overruling
  council
  decisions,
  and
• Ministers
  may
  be
  taken
  to
  court
  if
  they
  exceed
  their
  powers.

Putting
it
very
briefly: 
the
Constitutional
Court
has
ruled
that
Ministers
of
Local
Government
can
no
longer
act
like
dictators.

Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
for
information
supplied

Post
published
in:

Featured

A
pregnant
law
student
sought
modest
accommodations
when
finals
came
over
her
due
date.
The
school
rejected
the
request
saying,
“Motherhood
is
not
for
the
Faint
of
Heart.”
It
did
not
go
over
well
with
fellow
students.
Or
alumni.
Or
faculty.
Or
pretty
much
anyone.

Drake
accused
the
music
industry
of
conspiring
to
help
Kendrick
demolish
him
in
rap
battle.
RICO
claims?
They
really
not
like
us.
Finally,
Jonathan
Turley
accused
liberal
rage
for
the
disturbing
swatting
attack
he
suffered.
When
his
theory
of
the
case
turned
out
to
be…
wildly
and
completely
wrong,
he
took
a
swipe
at
Joe.

And
missed.

Biglaw
firms
are
continuing
to
leave
China,
closing
offices
there
left
and
right
—
and
the
latest
firm
to
do
so
is
considered
a
“pioneer”
when
it
comes
to
U.S.
firms
practicing
in
the
region.

As
noted
by
the

American
Lawyer,
Paul
Weiss
will
be
closing
its
Beijing
office,
which
was
first
opened
in
1981.
Paul
Weiss
now
becomes
the
13th
U.S.
firm
to
leave
the
Chinese
market
in
the
past
18
months.
The
firm
shared
the
following
sentiments
on
the
closure:

“We
remain
committed
to
having
a
strong
presence
across
Asia,
including
in
Hong
Kong
and
Tokyo,
and
will
continue
to
provide
the
highest-quality
service
to
our
clients
in
all
of
our
global
offices,”
a
spokesperson
for
the
firm
said
in
a
statement.

Paul
Weiss
currently
employs
one
partner,
one
counsel,
and
two
associates
in
its
Beijing
office.
The
firm
did
not
offer
comment
on
whether
they
had
been
offered
severance
packages
or
relocation
opportunities.
After
its
Beijing
office
closes,
the
firm
will
maintain
its
offices
in
Hong
Kong
and
Tokyo.

Which
Biglaw
firm
will
be
the
next
say
zàijiàn
to
its
offices
in
China?
You
can email
us or
text
us
(646-820-8477)
if
you
have
any
intel.
Thank
you.

Paul
Weiss,
Trailblazer
for
US
Firms
in
China,
to
Close
Beijing
Office
[American
Lawyer]

---

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

Attorneys
are
acutely
aware
of
the
potential
pitfalls
associated
with
overlooking
claims.
For
plaintiffs’
attorneys,
missing
a
claim
could
mean
unclaimed
compensation,
while
for
defense
counsel,
it
might
result
in
unforeseen
liabilities.
Identifying
claims
is
not
only
important
for
litigators
though.
In-house
counsel
and
government
lawyers
must
also
meticulously
assess
potential
claims
to
strategize
effectively,
and
transactional
lawyers
need
to
consider
potential
litigation
risks
during
negotiations. 

Thorough
claims
identification
has
to
go
beyond
brainstorming.
It
requires
a
nuanced
understanding
of
legal
precedent,
statutes,
and
potential
arguments.
Despite
best
efforts,
however,
the
process
of
identifying
claims
often
resembles
an
exercise
in
speculation,
as
evidenced
by
the
frequency
with
which
complaints
are
amended,
even
by
sophisticated
practitioners.

Enter
Thomson
Reuters’
Claims
Explorer,
an
innovative
tool
integrated
into
Westlaw
Precision
with
CoCounsel
and
designed
to
address
the
challenge
of
unrecognized
claims
using
generative
AI.
With
Claims
Explorer,
attorneys
can
input
a
fact
pattern
and
receive
a
comprehensive
list
of
potential
statutory,
common
law,
and
constitutional
claims,
complete
with
granular
insights
down
to
the
subsection
level. 

To
do
this,
Claims
Explorer
leverages
the
expertise
of
Thomson
Reuters’
extensive
and
expert
team
of
attorney
editors,
who
create
dedicated
editorial
content
which
augments
and
fuels
the
generative
power
of
a
large
language
model.
Product
testing
has
shown
transformative
results
across
a
range
of
legal
practitioners.

Operational
Overview

Accessing
Claims
Explorer
is
straightforward.
A
single
click
within
Westlaw
Precision
with
CoCounsel
brings
up
a
user-friendly
interface
where
researchers
are
prompted
to
enter
a
concise
fact
pattern
—
typically
three
to
four
sentences
suffice.
For
instance,
consider
a
scenario
involving
a
California
worker
placed
on
unpaid
leave
after
an
on-the-job
injury
despite
being
capable
of
performing
required
duties.

Within
moments,
Claims
Explorer
generates
a
list
of
potential
federal
and
state
statutory,
common
law,
and
constitutional
claims. 

Results
are
categorized
as
either
“supported”
or
“additional
facts
needed,”
with
the
latter
accompanied
by
detailed
analyses
indicating
a
potential
claim
and
identifying
information
missing
from
the
prompt
which
would
support
that
claim.
For
example,
in
the
worker
scenario,
a
potential
claim
might
require
the
employer
to
receive
federal
financial
assistance,
and
the
tool
explicitly
notes
this
prerequisite.

This
feature
serves
as
an
invaluable
starting
point
for
further
inquiry,
facilitating
discovery
requests
or
prompting
additional
client
questions.
It
ensures
that
attorneys
comprehensively
explore
all
potential
avenues
of
liability,
enhancing
their
ability
to
identify
unknown
risks.

Enhanced
Analytical
Precision

Claims
Explorer
provides
detailed
insights
into
each
claim,
including
specific
legal
subsections.
For
instance,
in
the
California
state
law
context
of
the
worker
scenario,
attorneys
receive
not
only
the
relevant
statutory
section
but
also
the
specific
subsection,
along
with
a
detailed
analysis
of
its
applicability.

This
level
of
detail,
previously
attainable
only
through
extensive
research,
is
now
accessible
within
seconds
thanks
to
the
generative
AI
capabilities
of
Claims
Explorer.
The
precision
of
the
tool
is
attributed
to
the
training
provided
by
Thomson
Reuters’
highly
experienced
expert
attorney
editors.

Efficacy
and
Impact

Thomson
Reuters’
testing
of
Claims
Explorer
reveals
impressive
efficacy.
In
an
analysis
of
cases
where
sophisticated
Am
Law
firms
amended
complaints
to
add
claims,
Claims
Explorer
identified
the
missing
claims
94%
of
the
time
when
provided
with
only
the
facts
from
the
original
complaint.
And
in
a
comparative
study,
lawyers
using
Claims
Explorer
identified
three
times
as
many
potentially
viable
claims
in
half
the
time
compared
with
those
working
without
the
tool. 

Implications
for
Legal
Practice

The
introduction
of
Claims
Explorer
has
significant
implications
for
various
aspects
of
legal
practice:

1. 
   Litigation
   Preparation:
   Enhances
   the
   thoroughness
   of
   initial
   case
   assessments
   and
   complaint
   drafting.
2. 
   Risk
   Management:
   Assists
   defense
   counsel
   in
   anticipating
   potential
   claims,
   identifying
   counterclaims,
   and
   developing
   comprehensive
   strategies.
3. 
   Transactional
   Due
   Diligence:
   Provides
   transactional
   attorneys
   with
   insights
   into
   potential
   litigation
   risks.
4. 
   In-House
   and
   Government
   Counsel:
   Facilitates
   more
   comprehensive
   legal
   risk
   assessments.

While
Claims
Explorer
represents
a
powerful
addition
to
the
legal
professional’s
toolkit,
it
is
important
to
note
that
it
serves
as
an
aid
to,
rather
than
a
replacement
for,
skilled
legal
analysis.
The
tool’s
efficacy
in
identifying
potential
claims
should
of
course
be
balanced
with
the
practitioner’s
experience
and
expertise
in
evaluating
the
merits
and
strategic
value
of
pursuing
claims. 

In
conclusion,
Claims
Explorer
represents
a
significant
advancement
in
legal
technology
—
an
effective
tool
where
previously
there
was
none
—
equipping
attorneys
with
powerful
functionality
to
mitigate
the
risk
of
missed
claims
and
enhance
their
strategic
decision-making
processes.


Find
out
more
about
Claims
Explorer
on
Westlaw
Precision
with
CoCounsel
here.

PACER,
the
federal
court
system’s
data
repository,
slows
to
a
crawl
mid-mornings
and
it
seems
to
be
getting
worse.
Everyone
has
experienced
it,
and
most
write
it
off
as
either
a
gremlin
or
an
unavoidable
byproduct
of
running
the
federal
judiciary
on
a
warmed
over
Geocities
page.

But
it
turns
out,
it’s
not
that
at
all!
From

Law360:

Recent
mid-morning
slowdowns
of
the
federal
courts
database
known
as
PACER
in
the
Southern
District
of
New
York
are
caused
by
a
profusion
of
data
miners
that
ply
their
trade
around
the
same
time
each
day,
a
district
official
confirmed
Tuesday.

Yes,
it’s
that
every
news
organization
and
legal
research
entity
decides
to
do
its
massive
scrape
job
at
the
exact
same
time
that
every
bleary
eyed
litigator
shows
up
to
work
and
check
their
dockets.
It’s
the
sort
of
drain
on
the
system
that
could
get
worse
if,
say,

a
moron
decided
to
put
“all
court
cases”
into
an
AI
because
he’s
tired
of
losing
real
court
cases
and
wants
to
replace
the
justice
system
with
an
algorithm.

“This
is
why
you
can’t
have
free
PACER!”
the
federal
judiciary
is
undoubtedly
saying
despite
the
fact
that
this
problem
is
happening

now
and
the
people
doing
it
will
continue
regardless
of
the
fees
associated.
Paywalling
out
normal
people
because
the
New
York
Times
causes
a
bottleneck
isn’t
a
just
strategy
for
a
public
and
transparent
justice
system.

For
years,
the
courts

used
PACER
fees
as
a
slush
fund
instead
of
making
the
comprehensive
investments
necessary
to
bring
the
site
up
to
—
I
won’t
say
the
2020s,
because
that
might
be
too
ambitious
—
at
least
the
early
aughts.
The
judiciary
fought
free
PACER
for
years,
arguing
that
opening
up
the
system
would
cost
them
$2
billion.
It
turned
out
to
be

much,
much
less.

But
PACER
needs
to
do

something.
Identifying
data
miners
and
throttling
their
accounts
until
close
of
business
in
the
United
States
could
at
least
move
the
problem
to
a
more
manageable
window.
The
Southern
District
of
New
York,
arguably
the
most
newsworthy
court
in
America
—
at
least

outside
of
Amarillo
—
is
working
with
the
Administrative
Office
of
the
U.S.
Courts
to
find
an
answer.

Until
then,
treat
this
problem
the
same
way
this
country
treats
recycling
or
power
conservation…
restrain
your
ultimately
inconsequential
use
of
the
system
as
a
purely
symbolic
gesture
while
megacorporations
continue
causing
the
problem.

It’s
Not
Your
Imagination,
SDNY
Attys:
PACER
Really
Is
Slow
[Law360]

Earlier:

Free
PACER
Would
Cost
$2B
And
Other
Completely
Made
Up
Garbage
The
Federal
Judiciary
Is
Peddling

When
Federal
Judges
Said
Free
PACER
Would
Cost
$2B,
They
Were
Completely
Full
Of
Crap

---

Joe
Patrice is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or

Bluesky
if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search.

The
matching
of
Milbank’s
generous

year-end
and

special
bonuses
is
still
underway,
and
Biglaw
firms
are
making
it
a
December
to
remember
for
associates
who
are
eagerly
awaiting
news
of
their
incoming
cash.
When
will
your
firm
make
its
announcement?

The
latest
firm
to
make
its
bonus
announcement
is
Norton
Rose
Fulbright,
which
brought
in
$2,261,192,000
gross
revenue
in
2023,
putting
it
at
No.
15
in
the
Am
Law
100.
With
all
of
that
money,
of
course
the
firm
is
matching
Milbank.
Here’s
what
the
bonus
grid
looks
like
at
NRF:

Special
bonuses
at
the
firm
will
be
awarded
to
associates
who
have
billed
1900
hours.

Congratulations
to
everyone
at
Norton
Rose!
Your
bank
accounts
will
be
bursting
come
January
31,
2025.

Remember
everyone,
we
depend
on
your
tips
to
stay
on
top
of
compensation
updates,
so
when
your
firm
announces
or
matches,
please
text
us
(646-820-8477)
or email
us (subject
line:
“[Firm
Name]
Bonus/Matches”).
Please
include
the
memo
if
available.
You
can
take
a
photo
of
the
memo
and
send
it
via
text
or
email
if
you
don’t
want
to
forward
the
original
PDF
or
Word
file.

And
if
you’d
like
to
sign
up
for
ATL’s
Bonus
Alerts
(which
is
the
alert
list
we
also
use
for
salary
announcements),
please
scroll
down
and
enter
your
email
address
in
the
box
below
this
post.
If
you
previously
signed
up
for
the
bonus
alerts,
you
don’t
need
to
do
anything.
You’ll
receive
an
email
notification
within
minutes
of
each
bonus
announcement
that
we
publish.
Thanks
for
your
help!

---

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

---

---

The
Department
of
Education
isn’t
the
only
institution
targeted
for
attack
by
the
incoming
administration.
Kash
Patel,
President-elect
Donald
Trump’s
expected
nominee
for
directing
the
FBI,
also
has
his
sights
on
at
least
one
law
firm.
Be
on
high
alert
if
you’re
a
member
of
the
partnership
at
Perkins
Coie:

Other
notables
include
Kamala
Harris,
Eric
Holder,
Christopher
Wray
(current
Director
of
the
FBI
and
former
partner
at
King
&
Spalding),
and
more.
This
not-so
subtle
piece
of
McCarthyism
for
our
generation
comes
from
Patel’s
book
“Government
Gangsters:
The
Deep
State,
the
Truth,
and
the
Battle
for
Our
Democracy.”
It
was
released
in
September
of
last
year,
but
interest
in
the
book
came
back
to
the
fore
after
President-elect
Trump
announced
he’d
nominate
Patel
to
direct
the
FBI.
Strange
announcement
considering

Wray
is
supposed
to
have
his
job
until
2027,
but
nothing
stepping
down
or
getting
fired
by
Trump
wouldn’t
fix.

Will
other
Biglaw
firms
be
labeled
as
enemies
of
the
state?
Only
time
will
tell;
we’ve
got
a
very
interesting
four
years
ahead
of
us.

---

Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.

The
use
of
Electronic
Health
Record
(EHR)
systems
has
revolutionized
how
healthcare
is
provided
by
allowing
access
to
data
and
improving
the
coordination
of
care
among
medical
professionals.
But,
the
transition
to
health
records
has
raised
worries
about
maintaining
patient
confidentiality
especially
as
healthcare
facilities
adjust
to
a
changing
environment. 

Incorporating

Privacy
by
Design
(PBD)
into
the
software
development
process
of
EHR
systems
presents
a
strategy
to
protect
information
starting
from
the
initial
stages
of
development
and,
throughout
the
entire
lifecycle
of
the
software.
Combining
PBDs
with
compliance
practices
can
result
in
EHR
systems
that
are
more
secure
and
reliable,
by
addressing
privacy
concerns
and
improving
data
protection
measures. 

The
core
ideas
of
PBDs
involve
setting
privacy
as
the
default
option
and
integrating
it
into
the
design
process
while
also
emphasizing
transparency
and
ensuring
end-to-end
security
measures
are
in
place
from
start
to
finish.
In
the
context
of
EHR
systems
implementation
of
these
principles
means
including
features
like
data
encryption
access
controls
and
ongoing
security
monitoring
efforts.
PBD
advocates
for
user
privacy,
by
giving
importance
to
consent
and
limiting
data-gathering
practices.
By
including
these
privacy
centric
components
healthcare
institutions
can
reduce
risks
and
safeguard
information.
Enhance
public
trust
in
digital
healthcare
solutions 

HIPAA
sets
regulations
to
safeguard
Protected
Health
Information
(ePHI)
ensuring
healthcare
providers
uphold
patient
confidentiality
rigorously
and
adhere
to
rules,
like
the
Privacy
Rule
and
Security
Rule
that
set
standards
for
ePHIs
security
and
mandate
breach
disclosure
when
data
is
compromised. 

The
confidentiality
regulations,
under
the
HIPAA
Privacy
Rule,
empower
patients
with
control
over
their
records.
Allow
them
to
review
and
update
them
as
needed
while
also
placing
restrictions
on
who
can
access
and
disclose
healthcare
data.
The
Security
Rule
also
extends
these
safeguards
to
ePHI
requiring
healthcare
institutions
to
establish
protective
measures,
like
access
restrictions
encryption,
and
secure
data
transfer
procedures.
Additionally,
the
Breach
Notification
Rule
necessitates
that
healthcare
facilities
notify
individuals
and
relevant
authorities
of
any
breaches
involving
ePHl
data. 

Integrating
privacy-by-design
and
HIPAA
into
the
SDLC

By
integrating
HIPAA
and
PBD
principles
into
every
phase
of
the
Software
Development
Life
Cycle
(SDLC)
healthcare
institutions
can
develop
EHR
systems
that
prioritize
safeguarding
information
from
the
outset. 

1. 
   Planning:
   Establish
   a
   privacy
   framework
   that
   aligns
   with
   HIPAA
   and
   PBD
   principles.
   This
   phase
   includes
   defining
   project
   goals,
   outlining
   data
   privacy
   policies,
   and
   identifying
   regulatory
   requirements
   to
   ensure
   that
   security
   and
   privacy
   concerns
   are
   addressed
   from
   the
   start.
2. 
   Analysis:
   Identify
   specific
   privacy
   requirements
   and
   potential
   risks
   associated
   with
   ePHI.
   During
   requirements
   gathering,
   developers
   should
   consult
   HIPAA
   compliance
   experts
   to
   ensure
   that
   security
   protocols
   such
   as
   access
   control,
   audit
   trails,
   and
   patient
   consent
   mechanisms
   are
   incorporated.
3. 
   Design:
   In
   the
   design
   phase,
   system
   architecture
   should
   prioritize
   secure
   data
   handling.
   Design
   features
   like
   encryption,
   secure
   authentication,
   and
   role-based
   access
   control
   align
   with
   HIPAA’s
   requirements
   for
   ePHI
   security.
   Data
   minimization
   and
   anonymization
   techniques
   can
   also
   reduce
   the
   exposure
   of
   sensitive
   information.
4. 
   Implementation:
   During
   this
   stage,
   developers
   implement
   coding
   practices
   that
   support
   data
   security
   and
   HIPAA
   compliance.
   Measures
   such
   as
   secure
   coding,
   automated
   logging
   of
   access
   to
   sensitive
   data,
   and
   integration
   of
   compliant
   libraries
   reinforce
   patient
   data
   protection.
5. 
   Testing:
   Testing
   includes
   functional,
   security,
   and
   compliance
   assessments
   to
   ensure
   HIPAA
   requirements
   are
   met.
   Compliance
   testing,
   penetration
   testing,
   and
   risk
   assessments
   verify
   that
   privacy
   measures
   work
   effectively
   before
   deployment.
   Identifying
   and
   mitigating
   vulnerabilities
   at
   this
   stage
   can
   prevent
   future
   breaches.
6. 
   Deployment:
   Before
   going
   live,
   ensure
   that
   security
   policies,
   such
   as
   user
   access
   controls
   and
   encryption
   settings,
   are
   active.
   Conduct
   a
   final
   compliance
   check
   to
   confirm
   that
   HIPAA
   and
   PBD
   measures
   are
   fully
   implemented,
   and
   provide
   users
   with
   necessary
   training
   on
   privacy
   policies.
7. 
   Maintenance:
   Routine
   system
   updates,
   audits,
   and
   monitoring
   are
   essential
   to
   maintain
   compliance
   and
   address
   new
   security
   threats.
   Periodic
   training
   reinforces
   staff
   awareness
   of
   HIPAA
   requirements,
   and
   continuous
   improvement
   processes
   allow
   the
   organization
   to
   stay
   compliant
   as
   regulations
   and
   technologies
   evolve.

Overcoming
challenges
in
implementing
HIPAA
compliance

Healthcare
organizations
often

face
obstacles
in
achieving
HIPAA
compliance,
especially
when
managing
complex
EHR
systems.
Navigating
the
healthcare
protocols,
in
place
along
with
constraints
on
resources
and
the
persistent
risk
of
cyber
threats
poses
a
challenge,
to
meeting
compliance
standards
in
that
field.
However,
organizations
can
tackle
these
obstacles
by
leveraging
technological
tools
and
training
their
staff
effectively
while
also
conducting
routine
compliance
assessments. 

It
can
be
quite
a
challenge,
from
a
standpoint
to
make
sure
everything
works
well
with
the
systems
that’s
already
in
place.
One
way
healthcare
providers
can
make
the
process
of
integrating
health
records
smoother
is
by
using
cloud-based
solutions
that
are
flexible
and
cost-effective.
Keeping
information
secure
is
crucial
so
encrypting
data
when
it’s
moving
between
systems
and
when
it
is
stored
adds
a
layer
of
protection,
for
ePHI.
By
using
two-factor
authentication
and
access
controls
effectively
managing
who
can
access
data
becomes
easier
which
helps
prevent
any
sharing
of
information. 

Engaging
in
training
can
help
tackle
hurdles
like
making
sure
all
staff
members
grasp
the
significance
of
HIPAA
regulations.
Teaching
workers,
about
data
security
procedures
and
emphasizing
their
responsibility
to
protect
confidentiality
promotes
a
culture
of
adherence,
to
rules.
Additionally,
carrying
out
compliance
audits
and
vulnerability
evaluations
enables
healthcare
institutions
to
detect
threats
sooner
rather
than
later.

Incorporating
PBD
concepts
with
adherence
to
the
SDLC
of
EHR
systems
improves
the
safeguarding
of
health
data
and
reduces
privacy
concerns
while
meeting
legal
requirements
effectively.
This
proactive
implementation
within
every
stage
of
development
allows
healthcare
institutions
to
deploy
EHR
systems
that
emphasize
privacy.
This
not
only
meets
standards
but
also
fosters
confidence
among
patients,
in
digital
health
solutions
supporting
healthcare
providers
in
offering
trustworthy
and
secure
care
services.

Photo:
invincible_bulldog,
Getty
Images

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