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New Technology Without Adoption Is Worse Than Doing Nothing

New Technology Without Adoption Is Worse Than Doing Nothing

Rohit Parekh – Matter365

New Technology Without Adoption Is Worse Than Doing Nothing

New Technology Without Adoption Is Worse Than Doing Nothing

Rohit Parekh – Matter365

New guidance from the Centers for Disease Control on who should be first to receive the coronavirus vaccine puts lawyers and other legal professionals near the top of the list.

On Sunday, the CDC’s Advisory Committee on Immunization Practices issued recommendations for who should be next to receive the vaccine after long-term care patients and frontline health care workers.

The recommendations outline three tiers of phase one vaccine prioritization. After the first tier of long-term care residents and health care workers comes group 1b, which includes persons 75 years and older and frontline essential workers.

Then comes group 1c, which includes persons 65 and older, persons with high-risk medical conditions, and “other essential workers.”

That category of “other essential workers” is defined by reference to a list prepared in August by the Cybersecurity and Infrastructure Security Agency (CISA) of Essential Critical Infrastructure Workers.

On that list are legal workers, defined as, “Workers supporting the operations of the judicial system, including judges, lawyers, and others providing legal assistance.”

“Populations included in Phase 1c are either at an increased risk for severe COVID-19 compared with the general population or support ongoing critical infrastructure operations,” the recommendations say.

The CDC did not say when the transition to phase 1c will begin, as it depends on vaccine supplies and production.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

I have a recurring nightmare. It takes one of two forms: either the California bar examiners tell me that they made a mistake 44 years ago and I did not pass, or worse, attorneys who have been practicing for more than X years must take another bar exam to see not only if they still have cognition, but also if we old folks still could give competent legal advice. I never thought I would be writing about the bar exam 44 years after I passed it, but here I am. And, like many other times, the story strains credulity, but the story seems to have no end.

How many times have you been accused of something and then it’s your job to disprove it, rather than the accuser having to provide proof? And no, I am not talking about all the kerfuffle since the election. I leave that to others. Not my job. As courts have asked, where’s the proof? And this question holds true here.

What I am talking about is the latest flap about the California Bar Exam. I never tire of writing about it because the hits just keep on coming.

The latest? The bar is accusing approximately a third (over 3,000) of the July, oops, October online bar examinees of cheating. Say what? The bar has sent out Chapter 6 notices, stating that there was cheating going on. What are the bases for these claims? It’s all in the videos, or so the bar examiners say.

What are the allegations that bar examiners say are evidence of cheating? How about the following: examinees’ eyes being intermittently out of view of the webcams, audio not working, and examinees not being present behind their computers during the exam? What if an examinee had to sneeze during the exam? I don’t know about you, but I usually sneeze with my eyes closed, and sometimes I sneeze into my elbow, so my eyes would not be seen.

If the audio is not working, whose problem is that? I would think that the bar would have overseen making sure that everything worked. What about the claim of not being present behind their computers during the exam? What if you had to leave the screen to use the bathroom and it couldn’t wait?

The examinees whose video files were flagged because they are suspected of cheating, and cheating not in the traditional sense, apparently not the most recent West Point scandal (same answer given on a part of the exam) but in the sense defined by the bar examiners.

How do you prove a negative? If the audio worked perfectly during the mock exam, why would there be any reason to believe that the same would not hold true during the actual test? How do you, as the examinee, explain that there was no cheating? Several disciplinary defense counsel say that the notices that their clients received were unsigned and undated Chapter 6 notices. The notices give the examinees 10 days to respond. Ten days from when? And how to respond? Do I say the word “snafu?”

What happens if the bar exam office determines that there was a violation? That examinee then can get his/her first test of the labyrinth of the law, requesting an administrative hearing, then an appeal to the bar examiners, and ultimately to the Supreme Court. How long will all that take? How much in fees — most examinees are already hurting financially — will have to be paid to resolve it? What if the process clears the examinee? Any provision for attorneys’ fees? What do you think?

The real rub is that these examinees’ bar scores will be held in abeyance so that these examinees will not be able to take the February bar, also to be held remotely. That’s so wrong.

These poor examinees have had to put up with so much tsjuris (Yiddish for grief and aggravation) this year, and there’s no need to refresh anyone’s recollection as to exactly how much there has been.

Delaying bar exams results until January is bad enough. Now the bar wants to further penalize exam takers by not letting them sit for the February bar while determinations of previous bar scores are pending. So, examinees may now have to wait until the summer bar, whenever that might be, to sit for the exam, a full year later than expected. Tell that to your student debt lenders, tell that to your family and creditors, not to mention firms that might have held jobs open. And while waiting to learn whether you cheated and whether you can sit for the February bar, read John Grisham’s The Rooster Bar. It’s a tale not talked often enough about law school debt.

We’ve had stories this year about ExamSoft software not being able to recognize people of color. Perhaps that could be a cause of the purported “cheating”? Racially discriminatory monitoring?

This is shadowboxing. At least in litigation, you know who the opponent is and what the claims are, more or less. Examinees who have received notices are hiring counsel to represent them in this mess, and I just don’t believe that all 3,000-plus examinees cheated. These examinees, most of whom are awaiting bar results to job hunt and eventually find jobs — not that there are any out there right now — who are mired in student debt with payments already due, now must shell out money for counsel to prove a negative. Ridiculous.

What Merry Christmas? Santa has just deposited not lumps of coal, but bags of shit for a third of the California October bar test takers. So not ho, ho, ho.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Nhu-Y Le to our pages. Click here if you’d like to donate to MothersEsquire.

“Can I move to Canada instead?”

A client asked me this question when we were on a call to discuss the timeline for his U.S. green card process. This question came up nearly three years ago and caught me off guard because, usually, most clients wanted to discuss their U.S. immigration options and prized the U.S. green card over all others.

It turns out that this was the first of many similar inquiries. Since then, I’ve received more and more interest in Canadian immigration, including inquiries from people already in the U.S. in valid status.

As a business immigration lawyer, my job is to help companies bring foreign talent to the U.S. by petitioning the government for work authorization and green cards for high-skilled foreign workers. It was troubling to see the declining interest in U.S. immigration from the foreign talent pool.

Sure, the U.S. immigration system needed revamping, but it felt like something deeper was going on. People were worried about the cracks in American society.

And they were justified to be concerned.

There were near-daily reports of escalating violence in the U.S. from racial tension erupting after decades of simmering in a social pressure cooker. There were also signs of growing economic inequalities with hard-working people struggling to make ends meet due to skyrocketing housing and healthcare costs. It felt as though the U.S. was slowly fading as a beacon of hope in the international migration map.

I empathize with clients who wanted to explore other options outside the U.S. because I am a mom and immigrant myself. As a mother, I understood on an intrinsic level that people wanted the best futures for their children. After all, I also want what’s best for my 3-year-old son. Was America still the best place for him to grow up? If it wasn’t, was I being disingenuous in helping other immigrant families — other parents with young children much like my own — in moving to the U.S. in the midst of the current social unrest?

Throughout much of my career, I took pride in being an immigration lawyer who was committed to helping other immigrants achieve better lives in the United States. But, doubt slowly crept in and cast a fog over whether I was actually helping my clients. I needed to reflect on whether I still believed that the U.S. was a good place for immigrants to live and raise their families.

I was lumbering through this fog of uncertainty when I saw a video the team at Legalpad had prepared. The video was a three-minute compilation of Zoom reactions from our customers, many of whom are startup founders, after learning that the government had approved their petitions to move to the U.S. to grow their companies. Some people cried. Others screamed and cheered. One person was so surprised that he yelled, “Holy s*it!”

What was consistent across all the reactions was the hope these clients had in the U.S. In their eyes, the U.S. held the key to their company’s success.

These startup founders have ideas that may change the world, and they believe that the U.S. was the place to grow seeds of innovation into groundbreaking technologies that could revolutionize industries. They believe the U.S. was still the hub of innovation, investment, mentoring, expertise, and professional connection. This is where they wanted to grow their companies.

I rewatched the video over a dozen times because it gave me newfound hope. I cried watching the video, and I even showed it to my son. (Granted, he is a toddler with a short attention span and did not appreciate the video as much as I did).

Yes, there is racial tension, economic inequality, and political turmoil in the U.S. These are serious issues that should not be taken lightly. As a society, we need to proactively work together to solve these systemic problems.

However, the video lifted the fog in my mind because it was a reminder of the American Dream. The ingenuity of the American people, the freedom to innovate, and the kindness of the majority of Americans were qualities that attracted startup founders to the United States. The video reminded me of why I became an immigration lawyer. I believe that the U.S. is still the best place in the world for immigrants who want to develop new ideas and build opportunities for themselves. This land is where dreams are made.

The U.S. is where I want to raise my child. The U.S. is where I want other people to be able to raise their children.

Every time I witness excitement and joy when a client learns that their immigration petition has been approved, it confirms that I am doing the right work. I can confidently say that I will be able to look my son in the eyes when he is older and proudly tell him of my life’s work to bring other immigrant families to the United States.

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Nhu-Y Le is Corporate Counsel at Legalpad, an immigration tech startup. She was previously in-house immigration counsel at a Fortune 100 technology company. Nhu-Y graduated from Boston College Law School. In her free time, she likes to watch cooking shows with her 3-year-old son and read murder mystery novels. You can follow her on LinkedIn for U.S. immigration updates, and email her at nhuy.le@legalpad.io. 

The American Hospital Association, along with several other organizations, filed an emergency stay of enforcement motion to prevent the Department of Health and Human Services’ hospital price transparency rule from going into effect Jan. 1. The rule requires each hospital operating in the U.S. to make public pricing information, including the prices they negotiate with commercial health insurers.

Last week, the Centers for Medicare and Medicaid issued a bulletin announcing its plans to audit a sample of hospitals for compliance with the rule starting in January.

The hospital groups filed the emergency motion Monday in response to the bulletin, arguing that enforcing the rule will “force overburdened hospitals to divert resources that hospitals desperately need to respond to the surge of Covid-19 cases.”

If the rule takes effect next month, hospitals will have to spend time on compliance rather than focusing on other pressing issues, including expanding bed capacity, planning for the vaccine rollout and completing virus reporting requirements, the groups argue in the motion filed in United States Court of Appeals for the District of Columbia Circuit.

“Whatever the public’s interest in hospital price transparency, it pales in comparison to the immediate public interest in an effective coronavirus response,” the emergency motion states.

Further, there is a lack of clarity around how to implement the price transparency rule’s requirements, the hospital groups claim.

There are monetary penalties for failing to comply with the rule. In cases of non-compliance, CMS can issue a warning, request a corrective action plan or impose a penalty of $300 per day if the hospital fails to submit the action plan or comply with its requirements.

The organizations that filed the motion, which include the Association of American Medical Colleges, Federation of American Hospitals and Memorial Community Hospital & Health System in Blair, Nebraska, are requesting that the court intervene by Dec. 31 to block the rule’s enforcement.

The hospital price transparency rule was finalized in November 2019, and it mandates that hospitals provide pricing information online about the items and services they offer in two ways: as a comprehensive machine-readable file and in a display of shoppable services in a consumer-friendly format.

The American Hospital Association and other hospital groups filed a lawsuit challenging the rule after it was finalized, but earlier this year a federal judge ruled against them. The hospital groups filed an appeal, and a panel of appellate judges heard oral arguments in October, according to Healthcare Dive. The appellate judges have not yet issued a final ruling.

The American Hospital Association has also sent a letter to the incoming administration of President-elect Joe Biden asking that they “exercise enforcement discretion” with respect to the hospital price transparency rule.

Photo credit: zimmytws, Getty Images

I think you tend to look from 30,000 feet, say, more often than you did. On the other hand, this great wisdom you’re supposed to acquire over time does quite often express itself in something that sounds as if it came out of a fortune cookie. So there are pluses and minuses.

Whether it’s always to the left, I don’t know. It’s very hard to say.

— Justice Stephen Breyer, expounding upon whether judges and justices get more liberal as they get older, during an interview with Slate’s Dahlia Lithwick. “[T]he court changes very, very, very slowly over long periods of time,” Breyer later added. “That’s what I think, because it’s the legal view and this sort of jurisprudential view: What is the country like? What’s this Constitution about? What is the court about? What is its proper role? Those questions will never be answered.”

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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 Twitter or connect with her on LinkedIn.

Way back at the beginning of December, you may recall that Donald Trump intervened in the laughable and quickly rejected lawsuit from Texas seeking to invalidate election results Ken Paxton didn’t like. Trump was represented in that intervention by a Chapman University law professor named John Eastman.

Eastman’s prior claim to fame was writing an op-ed in Newsweek last August arguing that Kamala Harris is not really a U.S. citizen. This was widely viewed as racist — because it is — and Newsweek had to tack a long semi-apology onto the piece saying they were shocked, shocked that the piece was being “used to perpetuate racism and xenophobia.”

I was less shocked than Newsweek’s editors, and not just because I was not born yesterday. As it happens, I’ve seen versions of Eastman’s argument before, because the virulently anti-immigrant part of the right wing has been trying unsuccessfully to promote it for years. I first ran across it in an amicus brief in a largely unrelated case about American Samoa, filed by the Immigration Reform Law Institute, the legal arm of a cluster of anti-immigrant organizations that includes the Center for Immigration Studies. It’s been promoted in at least one other op-ed, taken down here by Elie Mystal. It’s probably the basis for Trump’s recent chatter about ending birthright citizenship by executive order.

And, as a matter of law, it is hot garbage. Because in order to believe it, you have to believe that the Fourteenth Amendment does not mean what it says, and then disregard a Supreme Court precedent that directly says the children of immigrants are citizens. I really think the right wing, circa 2020, is incapable of feeling embarrassment.

The Fourteenth Amendment to the United States says that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Eastman concedes that in practice, the U.S. confers citizenship at birth, but claims that the “subject to the jurisdiction thereof” clause makes this legally incorrect. I would like to illuminate exactly why, but I find I cannot. Eastman says that Harris and others in her shoes are not subject to the complete jurisdiction of the U.S., but the closest he comes to explaining why is saying Harris owed allegiance to her parents’ countries if they were not naturalized citizens at her birth.

Eastman then goes on to say that his position is not contradicted by the Supreme Court’s holding in U.S. v. Wong Kim Ark, which said a native-born son of Chinese immigrants was a citizen. Sure, the case directly said “The fourteenth amendment … includ[es] all children here born of resident aliens,” but Eastman says this was dicta. He doesn’t provide any evidence for that, but who are you going to believe, a white man or your own eyes? (You actually don’t need to choose, because another white man, UCLA con law professor Professor Eugene Volokh, rebutted Eastman.)

The other arguments for this belief are equally bad. The amicus brief in the American Samoa case is mostly aimed at the children of undocumented immigrants, so it doesn’t apply to Harris, but does make the delightfully self-contradictory argument that such people aren’t subject to the jurisdiction of the United States because they can be deported. The op-ed Mystal was responding to implies that children of immigrants owe an allegiance to their parents’ countries, which is incorrect as to countries that don’t confer citizenship based on lineage, and appears to rely on a word the author inserted into an 1866 Congressional debate.

The Obama era taught me that when people passionately defend arguments that are obviously nonsense, it’s time to look for the racism. But in the course of writing this, I did find evidence for another explanation. Eastman’s bio at Chapman notes that he took time off from the university to run for California Attorney General in 2010. He didn’t win that race, or even get past the primary, but guess who did?

Kamala Harris.

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Lorelei Laird is a freelance writer specializing in the law, and the only person you know who still has an “I Believe Anita Hill” bumper sticker. Find her at wordofthelaird.com.