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MEMPHIS LAW MAGAZINE / WINTER 2017


Dean Peter V. Letsou

Executive Editor Ryan Jones

Contributing Writers Amy Campbell Ryan Jones

Photography

Published By

Trey Clark Ryan Jones

The University of Memphis Cecil C. Humphreys School of Law 1 North Front Street Memphis, TN 38103 (901) 678-2421 memphis.edu/law

Art Direction and Design Archer Malmo

To submit story ideas, alumni updates, or for other ML related inquiries, please contact Executive Editor, Ryan Jones at rjones1@memphis.edu. For limited advertising opportunities, please contact Executive Editor, Ryan Jones at rjones1@memphis.edu. UOM405/FY1718/6M Hot Graphics


WINTER 2017

MEMPHIS LAW MAGAZINE

TABLE OF CONTENTS

2

Dean’s Letter

12

The Rise of Robot Regulations

30

Alumni Notes

3

News + Events

By Ryan Jones

34

Faculty Accomplishments

6

A Legacy of Service

36

Faculty Op-Ed

By Ryan Jones

How to keep the robot overlords from taking over the Earth or, regulating artificial intelligence in a pro-active manner across industries, while still fostering innovation and growth.

An Update on Uncertainty By Amy Campbell, Director of the University of Memphis Health Law & Policy Institute and Associate Professor of Law

Professor Campbell gives an update on issues addressed at the Institute’s recent symposium focusing on the future of healthcare in America, with an emphasis on the importance of our communities’ health, as well as the future of the Affordable Care Act and whatever form it may take.

Judge Robert “Butch” Childers Leaves Behind a Legacy of Helping the Legal Community.

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Student Profile: Memphis Law: Clerking at the Federal Level

The University of Memphis School of Law Class of 2017 federal clerkship rate places Memphis Law amongst the top law schools in the U.S. We take a look at the students that made the leap from law student to federal judicial clerk from this class.

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I, (Robot) Lawyer Artificial Intelligence in the Legal Industry

By Ryan Jones

Will artificial intelligence take over the legal industry in our lifetime? A look at how law firms and attorneys are incorporating artificial intelligence into their practices.

28

True Blue Interview

Alumni Profile Amber Floyd (JD ’10)

THE COVER AND SELECT PAGES IN THIS ISSUE OF MEMPHIS LAW MAGAZINE ARE ENHANCED WITH AUGMENTED REALITY TECHNOLOGY. TO EXPERIENCE THE AR, FOLLOW THESE SIMPLE INSTRUCTIONS. THIS FEATURE IS AVAILABLE FOR A LIMITED TIME.

The University of Memphis does not discriminate against students, employees, or applicants for admission or employment on the basis of race, color, religion, creed, national origin, sex, sexual orientation, gender identity/expression, disability, age, status as a protected veteran, genetic information, or any other legally protected class with respect to all employment, programs and activities sponsored by the University of Memphis. The following position has been designated to handle inquiries regarding non-discrimination policies: Director for Institutional Equity, oie@memphis.edu, 156 Administration Building, 901.678.2713. The University of Memphis policy on nondiscrimination can be found at http://policies.memphis.edu/UM1381.htm.

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Message from the Dean I’d like to take this opportunity to highlight the accomplishments and developments that keep me – and I hope you too – excited about our law school. Heading up my list is our new entering class. We had a 10 percent increase in applications from last year, including a 21 percent increase in applications from non-residents – all in a year where the national applicant pool was flat. This shows the good news about Memphis Law is spreading and places our law school in the top quartile of all law schools nationally in application growth.

class will be clerking for federal judges in 2017–2018, which is among the strongest results in the nation and should place our law school in the top 20 nationally. Third, I’m excited about the impact our law school is continuing to have in the community. Over the last four years, we’ve started four new communityfocused programs, each of which strengthens Memphis while at the same time providing our students with essential legal skills.

These programs include: The Institute for Health Law and Policy (iHeLP), which focuses on using law and policy to advance community health; our anti-blight Neighborhood Preservation Clinic, which represents the City of Memphis in Environmental Court Second, I’m excited about the success in cases against delinquent property our graduates are enjoying in the job owners whose neglect scars our city’s market. The class of 2016, the most neighborhoods; our Medical Legal recent for which we have complete Partnership with Methodist Le Bonheur employment data, had especially Children’s Hospital and Memphis Area strong results, with 90 percent of the Legal Services, which puts our students class employed within 10 months. and supervising faculty in the hospital Within the core category of graduates to assist patients with legal violations who found full-time, long-term jobs in that contribute to health problems; which bar passage was required or a and our Children’s Defense Clinic, J.D. was an advantage, Memphis Law which just finished its first year of ranked among the nation’s strongest representing children in the Juvenile law schools, with 78 percent of the class Court of Memphis and Shelby County. finding such employment. We know these programs are having an Based on data from past years, that impact both from the volume of cases outcome would place Memphis 57th they handle (more than 800 already in the country out of more than 200 for our Neighborhood Preservation law schools. Clinic) and from the generous financial support our community partners Our success in the job market has been provide. matched and exceeded by our success in the competition for prestigious Finally, I’m excited that our law school federal judicial clerkships. Seven is working hard to remain at the percent of the most recent graduating cutting edge of legal education. 2

I’m also very pleased to say that we’re supplementing these programs with a new legal methods program that begins this semester.

DEAN PETER V. LETSOU

As you may know, the ABA is placing increasing emphasis on experiential learning in law schools, requiring law schools to increase the required credits devoted to those activities. Our law school is wellpositioned to meet and exceed these new requirements because of: The communityfocused programs already mentioned; Our existing clinical programs, including our Elder Law Clinic and our Housing Adjudication Clinic; Our growing externship program, which – together with our law review – has contributed greatly to our outstanding federal clerkship results; and Our long-standing and highly successful advocacy program, which trains students in both oral and written advocacy and sends student teams to competitions across the nation.

We know how important writing skills are to the success of our students, so this year we’ve transformed our first-year legal methods program by hiring three new full-time faculty members who will devote themselves to the training of our first-year students. These three new faculty members (introduced to you later in this issue) join a faculty that has long distinguished itself not only through its excellent scholarship and distinguished service, but also through an unparalleled commitment to student success. One very sad note in closing: Our very first dean, Robert Doyle Cox, passed away on September 24, 2017. Dean Cox, who served as dean from the law school’s founding in 1962 until 1977, is remembered in this issue. As the law school enters its 56th year and continues to build on the foundations established by Dean Cox, I’m proud to say that Memphis Law continues to have much to brag about and many reasons to be excited and optimistic about the future. Cordially,

PET ER V. LETSO U

DEAN


News + Events

Memphis Law Among Top U.S. Law Schools FOR FEDERAL JUDICIAL CLERKSHIPS The Class of 2017 placed 7 percent of its graduating class in a federal judicial clerkship, placing Memphis Law in what is traditionally the top 20 law schools in the nation for federal clerkships obtained by graduates.

MLK50 MEMPHIS LAW/NATIONAL CIVIL RIGHTS MUSEUM SYMPOSIUM

with Eric Holder

The University of Memphis School of Law has partnered with the National Civil Rights Museum to host a two-day symposium as part of the year-long MLK50 remembrance in Memphis. The symposium, entitled “Where Do We Go From Here?” and taking place on April 2–3, 2018, will feature former United States Attorney General Eric Holder as the keynote speaker. The MLK50 symposium will also feature an array of nationally recognized panelists in order to discuss the legal accomplishments, challenges, hurdles and opportunities related to aspects of Dr. King’s legacy, including housing, education, voting rights, equal employment opportunity and the current criminal justice system.

Tennessee Workers’ Compensation Appeals Board at Memphis Law The Tennessee Workers’ Compensation Appeals Board sat at the law school and heard three appeals in the law school’s historic courtroom in August. The judges graciously offered students the opportunity to attend the proceedings and held a discussion with them afterward in the courtroom. Children’s Defense Clinic Hosts Gault at 50 Symposium The Children’s Defense Clinic hosted the “Gault at 50 Symposium - In re Gault: Inspiration & Aspiration” earlier this year, with presentations from Marsha Levick, Mae Quinn, Joshua Perry and Demetria Frank. The symposium examined how far our juvenile courts have come since In re Gault, how we can ensure the constitutional and civil rights of court-involved kids, and what’s next in the world of juvenile justice reform.

MEMPHIS LAW HOSTS SAPLA/SWAPLA CONFERENCE

Memphis Law was proud to host the Southern Association of Pre-Law Advisors (SAPLA) and the Southwest Association of Pre-Law Advisors (SWAPLA) for their joint 2017 annual conference in September. Over 140 pre-law advisors, professors and law school professionals attended the event at the law school.

PROFESSOR AMY CAMPBELL RECEIVES DISTINGUISHED SERVICE AWARD

M ICH A E L E LSN E R at Memphis Law

Attorney Michael Elsner (JD '97) spoke at Memphis Law earlier this semester regarding his role as lead plaintiff’s counsel in Linde et al. v. Arab Bank, a suit brought on behalf of victims of terrorist attacks in Israel. In September 2014, a jury found Jordan-based Arab Bank plc liable for financing terrorist activity, including funneling

Professor Amy Campbell, Director of the Institute for Health Law & Policy at the University of Memphis School of Law, was honored with the first Wexler/ Winick Distinguished Service Award by the International Society for Therapeutic Jurisprudence. Additionally, she has been named as an inaugural board member of the International Society for Therapeutic Jurisprudence.

financial support to top Hamas

CHERYL EDWARDS HIRED AS NEW REGISTRAR

Court. The Court will decide

The law school was pleased to announce the hiring of Cheryl Edwards as the new law school registrar earlier this fall.

leaders and to the families of suicide bombers. This verdict marked the first time a financial institution has been held liable for financing terrorism. Mr. Elsner also spoke about his work as co-lead counsel in a parallel suit for non-U.S. citizens, Jesner v. Arab Bank, which is currently pending before the U.S. Supreme whether a corporation is immune from suits under the Alien Tort Statute for violations of customary international law.

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News + Events

EVIDENCE UofM Law Review Publishing John Grisham-Focused Volume The University of Memphis Law Review is planning to publish a unique edition focused on legal issues related to the work of John Grisham, author of such bestselling books as The Rainmaker, The Client and The Firm, all of which have ties to Memphis. As a special way to celebrate Grisham’s unique contributions to the law, this issue will feature articles on legal topics that arise in Grisham’s stories. An ideal submission will frame its content with specific reference(s) to Grisham’s work(s) and will offer a practical legal argument.

Memphis Law Employment Figures Top

% In the latest ABA employment report, the Memphis Law Class of 2016 was employed at a rate of 90 percent

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The Law of Gameday with Memphis Law’s Sports and Entertainment Law Society

The University of Memphis Sports and Entertainment Law Society partnered with the Sports Lawyers Association, ABA Sports, and the Sports and Entertainment Law Societies from UT Law, Vanderbilt Law and Louisville Law for a joint event in Nashville titled, “The Law of Gameday,” which featured a panel of experienced speakers from law firms and sports marketing agencies.


IN MEMORIAM:

FOUNDING DEAN ROBERT DOYLE COX

The University of Memphis Cecil C. Humphreys School of Law was saddened to learn of the passing of Robert Doyle Cox, founding dean of the law school, earlier this fall. Mr. Cox was hired as the Dean of the new Cecil C. Humphreys School of Law at Memphis State University in 1962. He was Dean from 19621977. After retiring as dean, Mr. Cox continued teaching at the law school for many years. The University of Memphis School of Law and the entire University of Memphis community offers its condolences to his family, colleagues and friends.

Professor Christina Zawisza Retirement

Professor Christina Zawizsa, who spent 15 years guiding and nurturing a new generation of legal practitioners as a Memphis Law faculty member, retired in 2017. Professor Zawisza retired as a full Professor of Clinical Law and Director of the Child and Family Litigation Clinic that she designed and supervised.

Pillars of Excellence 2017

Professor Alena Allen Named New Diversity Director Professor Alena Allen was named as Director of Diversity at the law school, while continuing in her role as a professor.

ALENA ALLEN

CONFEDERATE MONUMENT BLSA PANEL AT MEMPHIS LAW

The law school and the Black Law Students Association hosted a moderated panel entitled “Removing the Monuments: A Legal Perspective” at the law school in October. The panel featured a variety of legal experts and individuals heavily involved in the issue and was designed to be an educational opportunity to help inform students and the public about the real legal issues involved in the confederate monument removal debate.

Legal Methods Program EXPANDS WITH NEW HIRES

The law school has hired three full-time legal writing faculty members to expand the legal research, writing and analysis training it provides to its students and better prepare its students for the increasing complexity of practice in todays legal environment. The three new full-time Clinical Assistant Professors are Carrie Eaker Kerley, Regina Lambert and Mary Hale Morris.

MEREDITH ADEN

ASSISTANT DEAN MEREDITH ADEN HONORED WITH AWARD

Assistant Dean Meredith Aden was selected as the recipient of the The Susan TePaske Award for Leadership in Disability Support for the 2016–2017 academic year. KESHA PRITCHARD HIRED AS ADMINISTRATIVE ASSISTANT TO FACULTY

CARRIE EAKER KERLEY

REGINA LAMBERT

MARY HALE MORRIS

The law school welcomed Kesha Pritchard as the new administrative assistant for faculty.

The Cecil C. Humphreys School of Law Alumni Chapter honored seven individuals at the 2017 Pillars of Excellence event in August at the Hilton Memphis. The 2017 honorees were Homer Boyd Branan III (JD ’68) of Farris Bobango Branan; Hon. Julia Smith Gibbons of the U.S. 6th Circuit Court of Appeals; John I. Houseal Jr. (JD ’70) of Glankler Brown; Jim N. Raines (JD ‘68), retired from Glankler Brown; Hon. James Dale Todd (JD ’72), senior U.S. district judge of the U.S. District Court for the Western District of Tennessee; and James C. Warner of Martin, Tate, Morrow & Marston. The Law Alumni Chapter also honored former UofM President Shirley C. Raines as Friend of the Law School.

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A LEGACY of SERVICE Judge Robert “Butch” Childers (J.D. ’74) Leaves Behind a Legacy of Helping the Legal Community


e make a living by what we get, but we make a life by what we give.” That quote by Winston Churchill sums up Judge Butch Childers’ outlook on life, both from the bench and in the community. Having recently stepped down from the bench after 34 years of serving as a Circuit Court judge in Shelby County, Judge Childers doesn’t aim to stop helping others, same as he’s always done, any time soon. He’s always had his eyes set on a career on the bench, but before he was known as “Judge,” Butch Childers intended to spend his time in the dugout, sitting on the bench of a professional baseball team. That was his first dream, but when he didn’t make the cut for his varsity baseball team in high school, Childers pivoted to a new career path and hasn’t deviated since. Due to the advice of his longtime friend Charlie Tuggle (currently the Executive Vice President & General Counsel at First Horizon National Corporation, the parent company of First Tennessee Bank), Childers decided a career in law was for him. After receiving his undergraduate degree from the University of Memphis (then Memphis State), he enrolled in law school at the University of Memphis School of Law in the fall of 1971 and graduated three years later in 1974. He practiced law privately for seven years before deciding to throw his hat in the political arena. After a promising but ultimately unsuccessful campaign in the early 1980s, Childers won a seat in Circuit Court in Shelby County in 1984 as one of the youngest individuals to ever win a seat in that Court. Since then, Judge Childers has had two causes that he has placed the utmost importance upon in his career: ending domestic violence and helping attorneys, judges and law students deal with substance abuse and mental health problems. “My passions have always centered around lawyer’s assistance programs,” Judge Childers noted. “A lot of it got started because of the suicide of a friend of mine and Janice Holder. We both wanted to find a way to help to help our friends and colleagues who were struggling from the stress of practicing law. I did not like standing by and watching people harm themselves without trying to do something to help them.” In 1999, the Tennessee Supreme Court, with the help of the Hon. Janice Holder, who was by then a Tennessee Supreme Court Justice, created the Tennessee Lawyers Assistance Program (TLAP), a confidential service for attorneys struggling with addiction, depression, anxiety, stress, burnout, anger or grief. Judge Childers was one of the first commissioners appointed to the TLAP management board and served as the commissioner for 10 years, with extensive work also being carried out by him at both the local and national levels for similar programs with the Memphis Bar Association and the American Bar Association. As part of that ABA involvement, Judge Childers chaired the ABA Commission on Lawyer Assistance Programs (CoLAP) and helped it sponsor a measure called the “Model Rule on Conditional Admission to Practice Law,” which was adopted by the ABA in 2009. This model rule granted conditional admission to applicants who have experienced and gone through rehabilitation for chemical dependency or mental health conditions that otherwise would have rendered them unfit to practice law. The goal of this conditional admission rule was and is to encourage law students and bar applicants to seek help early when they are dealing with issues related to substance abuse or mental health without fear that doing so would prevent them later from being licensed to practice law. 7


When you get out of law school, however you use your law degree, whatever you do, find something you love to do and find something that you can do passionately. Use your degree in a manner that makes you feel fulfilled. “I wanted to reach lawyers at the earliest stage, which I figured was in law school,” said Judge Childers. “The public is better protected by encouraging law students and bar applicants to get the help they need and by also putting in place the conditions that help applicants feel assured that the conditional admission will be kept confidential so that they can continue their recovery and practice without impairment.” Continuing his mission to help and serve the community, Judge Childers has made impressive strides in his efforts to combat domestic violence as well, culminating with him being awarded the Judge Wheatcraft Award from the Tennessee Coalition against Domestic and Sexual Violence for outstanding service in combating domestic violence in 2001. Additionally, Judge Childers has served as the president of the Shelby County Domestic Violence Council and has also chaired the Tennessee Domestic Violence State Coordinating Council during his long career on the bench. His hard work on the bench has not gone unnoticed by his peers. In addition to being reelected five times, he’s received the Outstanding Judge of the Year by both the Memphis Bar Association in 1986, 1999 and 2006, and the Memphis Bar Association’s Family Law section in 2005, as well as the Shelby County Deputy Sheriff’s Association in 1990. Judge Childers also served as the past president of the Tennessee Judicial Conference and is a charter member, past president and master of the bench of the Leo Bearman Sr. Chapter of the American Inns of Court. Additionally, he was awarded the Distinguished Alumnus Award from the University of Memphis in 2002 and was named a Paul Harris Fellow by the Memphis Rotary Club in 2002. 8

Considering his impressive 34-year career has earned a long list of accolades, it’s hard to believe Judge Childers still has items left on his to-do list. “I’m at the stage of life that’s called the ‘Generative’ stage, which is where one wants to pass along their experiences to the next generation,” said Judge Childers. Now that he’s off the bench, he wants to pay it forward to the next generation of attorneys and Memphians. “My next, or latest, sort of project is focused on ‘Mindfulness in the law’,” said Judge Childers. “It’s basically just learning awareness and to be in the moment and be aware of what you’re doing, while you’re doing it.” Childers says this initiative can be transformative for both law students and practicing attorneys. “This idea has come to the legal profession pretty late in the game. Large businesses and corporations have been doing it for years. In the law school context, it helps to make law students more attentive in class and, in turn, in their future practices,” according to Childers, who has already lectured several times about this philosophy to current law students in Memphis, as well as practitioners at various conferences. As a final bit of wisdom to those still in law school or looking for guidance in their careers and lives, Judge Childers has some key recommendations. “When you get out of law school, however you use your law degree, whatever you do, find something you love to do and find something that you can do passionately. Use your degree in a manner that makes you feel fulfilled.”


A LEGACY of SERVICE

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Student Profiles

MEMPHIS LAW: Clerking at the Federal Level Class of 2017 Federal Clerkship Rate Places Memphis Law amongst Top Law Schools in the U.S. With 7 percent of the Class of 2017 receiving a prestigious federal judicial clerkship, Memphis Law is proud to be among the top law schools in the country for federal clerkships obtained by our most recent graduating class. This exciting accomplishment places Memphis Law in what is traditionally the top 20 law schools in the nation. The law school’s high rate of success in this area is due to a variety of factors, including an excellent externship program, in which each student participated, that was vital in giving each of these recent

How important was your externship in obtaining the skills necessary to obtain your clerkship?

We asked each of these former students (and new clerks) for some insight and advice about how they ended up with their federal clerkship, including any important tips for current students looking to go the same route.

“I give full credit to Professor Danny Schaffzin’s externship program for both of my clerkships. Without the professional relationships I developed with each judge and their clerks while externing, I doubt I would have gotten either one.” - LYLE GRUBY

“My externships gave me an opportunity to build a positive relationship and reputation with various members of the legal community. In many regards, the experience, knowledge, skills, reputation and relationships that were fostered through these externships were significant in making me a desirable applicant for federal judicial clerkships.” - DEVON MUSE

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graduates relevant experience and connecting them with several federal judges who ultimately decided to hire them. Additionally, each student was a member of the University of Memphis Law Review, giving them increased practice and expertise in writing and editing, qualities these federal judges looked for in the hiring process.

“The externship was decisive in obtaining my clerkship. It was an opportunity to show much more than could be shown with a resume, writing sample, transcripts and letters of recommendation. It was an opportunity to show reliability, consistency, diligence, skill and resilience under pressure. It was an unparalleled opportunity. The academic seminar component of the externship was great, too. The chance to reflect on what you’re experiencing in your externship, compare notes with others and learn from the professors is golden.” - PABLO J. DAVIS


Do you have any lessons you’d like to impart to Memphis Law students looking for federal or any level clerkship? “Create an OSCAR account during your 2L year and keep up-to-date on all judges accepting applications. Network; tell attorneys you know that you are applying for clerkships and ask them to let you know if they hear of judges looking to hire new clerks. If you have worked for those attorneys, ask one or two to contact the judge and recommend you. Write a cover letter and have several people proofread it for you. Finally, dress conservatively in your interviews.” - MEGAN MCKENZIE REED

“Spend some time in a mock interview with a classmate or professor to work on your answers to a variety of questions. I cannot recommend this enough. It resulted in the first interview I have ever felt comfortable in.”

PABLO J. DAVIS

Clerk to the Honorable Bernice B. Donald, United States Court of Appeals for the Sixth Circuit (2017–2018 term)

“Finding a mentor, whether a judge or a seasoned attorney, is crucial to learning how to be effective in your own career.” - DAVID W. MARSHBURN

“Work and study hard. Soak up all the knowledge and guidance you can from your professors and upper level students. Extern for a federal judge. Put everything you have into Legal Methods and go see Dr. Dunham-Smith for writing direction. Join the law review and put forth the effort to be on the editorial board.” – LYLE GRUBY

- JORDAN M. EMILY

JORDAN M. EMILY

Clerk to the Honorable S. Thomas Anderson, Chief Judge of the United States District Court for the Western District of Tennessee (2017–2018 term)

LYLE GRUBY

Clerk to the Honorable Sheryl H. Lipman, United States District Court for the Western District of Tennessee (2017-2018 term); Clerk to the Honorable Bernice B. Donald, United States Court of Appeals for the 6th Circuit (2018–2019 term)

DAVID W. MARSHBURN Clerk to the

Honorable James L. Croom, United States Bankruptcy Court for the Western District of Tennessee (2017–2018 term)

What are the most important skills or classes from law school as they relate to your federal clerkship? “Legal methods is the most important class in terms of learning the skills necessary to be successful in a clerkship. Lawyers and clerks alike spend the majority of their time researching and writing, so acquiring a strong foundation during 1L year in learning how to effectively and efficiently research legal issues as well as conveying that research in the most cogent way is essential to any successful legal career.” - DAVID MARSHBURN

“Having a writing sample from my externship was a major help in obtaining my clerkship because all judges want to see them, and having one that was written during my time serving as an extern in a federal courthouse was very valuable.”

DEVON MUSE

Clerk to the Honorable John T. Fowlkes, United States District Court for the Western District of Tennessee (2017-2018 term); Clerk to the Honorable Bernice B. Donald, United States Court of Appeals for the 6th Circuit (2018–2019 term)

MEGAN MCKENZIE REED

Clerk to the Honorable Diane Vescovo, Chief Magistrate for the United States District Court for the Western District of Tennessee (2017–2018 term)

- HUNTER YOCHES

“Apart from the externship program, I would recommend taking every chance to improve your legal writing skills: working hard in Legal Methods to build the necessary skills and participating in law review. I have found Federal Courts, Administrative Law and Legislation to be exceedingly helpful.”

HUNTER YOCHES

Clerk to the Honorable Thomas Johnston, United States District Court for the Southern District of West Virginia (2017–2018 term)

- JORDAN M. EMILY

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THE RISE OF

R E G U L AT I O N S “Artificial Intelligence (AI) is the biggest risk we face as a civilization and it needs to be checked as soon as possible,” that’s according to Tesla and SpaceX CEO Elon Musk. “AI is a rare case where we need to be proactive in regulation instead of reactive — because if we’re reactive in AI regulation, it’s too late.”

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n what seems like a few short years, artificial intelligence has gone from the pages of a science fiction novel to the mainstream realms of business and society. Today’s headlines are full of realworld technological leaps and innovations involving artificial intelligence that would have been the fodder for imagination only years ago. But oftentimes those stories paint contrasting pictures of artificial intelligence. Is AI going to lead society to a new, uber-efficient, highly prosperous and

By Ryan Jones

innovative future, or will it be a dangerous technological leap toward robot overlords and rogue computer-driven cities? Musk himself worries that there is a risk that “until people see robots go down the street killing people, they will not know how to react.” But where does the moral, ethical and legal responsibility for the actions of increasingly autonomous and complex artificial intelligence lie? The regulations and frameworks developed around AI today will help to define that future and answer these questions.


HISTORY OF ARTIFICIAL INTELLIGENCE

S

imply put, artificial intelligence is a computer system that can do tasks that humans need intelligence to perform. It’s a system that can learn how to learn, or, rather, an algorithm that allows computers to write their own algorithms without being specifically programmed for that purpose.

criticized for lack of progress. Many efforts to replicate the “neural networks” of the human brain were tested and dropped, with successes limited to very simple problems, leaving the public and government underwhelmed. This phenomenon of upfront excitement followed by ultimate disappointment gave rise to the two-part AI effect:

But the origins of AI go back much further than most realize.

1. The constant promise of genuine and realistic AI coming in the next 10year period.

The beginnings of modern AI thinking can be detected as far back as ancient Greece and attempts at modelling human thinking as a system of symbols. Moving into the modern era, Alan Turing, an English computer scientist, mathematician, cryptanalyst and philosopher, composed a paper in 1950 that theorized how to test a “thinking” machine. That was followed by a 1952 paper by Drs. Hodgkin and Huxley, which introduced the model and idea of the brain as neurons forming an actual electrical network. These ideas culminated in a now legendary conference sponsored by Dartmouth College in 1956 where the concept of defined Artificial Intelligence was first articulated. As soon as the research from Dartmouth was publicly released, a steady stream of government funding was reserved for the study of creating a “non-biological” intelligence. But the subsequent research and development of AI was not as successful and promising as originally hoped. Funding for AI research was cut in the 1970s after many projects were

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2. The discounting of AI behavior that mastered a certain problem by continuously redefining what “intelligence” really means. By the 1980s and early 90s, AI research and programs, especially in England and Japan, began to pick up steam. Most research focused on “expert systems.” This is a “narrow” form of AI that gets better at performing a task or application by taking in more data to “learn” how to reduce the output error in that task. But these expert systems were soon seen as slow and clunky in comparison to the rising popularity of desktop computers. Around the same time, DARPA (the Defense Advanced Research Projects Agency) determined that AI would not be the next big wave in technology and redirected its funding elsewhere, resulting in the second stall in AI development. Only in the last decade has the world seen a resurgence in AI developments.

Several factors have fostered this new era of AI growth: Big Data – Data: the storage of it, the

collection of it and the use of it.

– The huge increase in the amount of digital information being generated, converted, stored and made available for analysis.

The Internet

Technology advancement – Advances in data storage and computing power, increased understanding of algorithms and neural networks, and reduced costs of technology. Democratization and comfort of resources and usage – the integration of

AI into citizens’ daily lives with resources such as Uber, Google, Snapchat, navigational tools, virtual assistants and research resources. Today’s view of AI veers drastically from the initial post-Dartmouth focus on large and comprehensive computer programs combining complex rules of logical reasoning with detailed knowledge of our world. Now, research is centered on computers learning from massive amounts of data, with the model being the human brain itself. The goal of researchers is to create a flexible and adaptable branch of AI – “machinelearning” – in which more advanced skills will emerge in an organic way from data and experience. This new understanding of AI has exploded across the world, coupled with calls to regulate overreaches of the new technology without stifling progress.


AI IN OUR LIVES “AI is the new electricity,” according to Andrew Ng, former chief scientist at Baidu, one of the leading Chinese web service companies, in an interview with ABC News. “AI will increasingly be all around you, from your phone to your TV, car and home appliances. But AI isn’t just our future; it’s already here.

T R A N S P O R TAT I O N

match you with other passengers to

Advancements in AI technology have been making life on the road easier for us for years. From a variety of apps and programs that save driving time and find more efficient routes to “smart streets” that track available parking and congestion, AI is helping streamline transportation across the industry.

minimize any detours along the routes.

AI and its various related industries have become major players in the auto industry worldwide. From impact detection, selfdriving programs and built-in smart assistants, there are a variety of AI developments in the works or currently being rolled out. The integration of AI into more cars has the potential to revolutionize the way we think about transportation. Recognizable companies like Uber, Lyft, Google, General Motors and Tesla have all invested heavily in the transportationbased future of AI.

General Motors may hold the advantage in leading the fully autonomous vehicle race. The auto giant is already testing autonomous vehicles in “complex urban environments” like San Francisco and has recently indicated that it has developed the “first mass producible self-driving car, built at a plant capable of producing 100,000 vehicles per year,” according to a recent report from Deutsche Bank. GM also has an advantage when it comes to the number of cars on the road collecting data for their AI algorithms. Tesla has featured Autopilot on its line of cars for several years now, with more features and upgrades rolling out

Google uses anonymized location-based data from phones in conjunction with its Google Maps system. Maps has the ability to analyze the speed and movement of traffic at any given time and combined with Google-acquired app Waze, Maps can now easily incorporate user-reported traffic incidents and construction. Using this vast amount of data, Google Maps is able to reduce commute times and find the fastest routes available.

regularly. It began with semi-autonomous

Uber and Lyft are two of the most recognizable tech and transportation companies in the market today. They use machine learning to determine the price of your ride, to minimize wait times and find efficient routes, as well as to optimally

perpendicular parking. Earlier in 2017,

driving and parking capabilities, and has progressed to radar-based systems aiding drivers in low visibility conditions; more recently, Google Maps released hardware and software that will eventually allow for fully autonomous operation. Its most recent models feature a drivingassist algorithm, as well as full-speed braking and the handling of parallel and company founder Elon Musk predicted that in around two years, drivers will be able to sleep in their Teslas as they drive, all thanks to AI-enabled features.


E M A I L & S PA M

S O C I A L N E T WO R KS

Spam has become the bane of everyone’s email inbox in the internet age. Though that inbox might seem an unlikely place to incorporate AI, it’s an area that AI technology is largely powering via today’s spam filters. Spam filters must constantly “learn” from signals and clues, such as words in spam messages, metadata, sender identity and location. Even further, they define your personalized individual definition of spam. With the use of machine learning algorithms, Google states that it successfully filters out 99.9 percent of spam from your inbox.

AI is also integral to the operation and evolution of social networks like Facebook and Instagram.

Google uses AI to go even further into your email inbox with its categorization of your emails into primary, social and promotion inboxes, and additionally labeling which emails are important to you. They have even introduced their “smart reply” to your inbox, which uses machine learning to automatically suggest three different, brief and customized responses to an email. BANKING

Most banks now offer users the ability to deposit checks through an app on their phones using AI and machine learning to decipher and convert the handwriting on your checks into text. AI is also key to fraud prevention, with banks using AI-driven programming to learn what types of transactions are fraudulent. FICO, the creditrating company, uses neural networks to predict fraudulent transactions based on factors such as frequency of transactions, transaction size and the kinds of retailers involved. FICO also uses machine learning to make credit decisions. In addition to using machine learning to determine credit scores, FICO uses it to assess the specific risk associated with individual customers. In a recent report from MIT, researchers found this application of machine learning could reduce bank losses from delinquent customers by up to 25 percent.

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Facebook uses AI to recognize faces, automatically highlighting them in uploaded photos and suggesting friends to tag. The company also uses AI to fine-tune your newsfeed by only showing you posts that it has learned interest you, and by showing you ads relevant to your “learned” interests, driving millions of dollars of ad revenue to Facebook. In 2016, Facebook even acquired a new AI initiative called DeepText, which allowed the company to “understand with near human accuracy, the textual context of several thousand posts per second, spanning more than 20 languages.” Facebook now uses DeepText via its Messenger app to detect your intent and tie that to services, such as hailing an Uber for you when you type “I need a ride.” Pinterest uses AI in its innovative “computer vision” or lens feature, where computers are taught to actually “see” so that Pinterest can automatically identify objects in images (or “pins”) and then recommend similar pins. And Snapchat introduced facial filters, called Lenses, back in 2015. These filters track facial movements, allowing Snapchat users to add fun, animated effects or digital masks that automatically adjust whenever their faces move. V I R T U A L A S S I S TA N T S

A now-standard feature on smartphones and in our daily lives is voice-to-text. However common it may seem now, until very recently it was beyond the abilities of even the most advanced computers. Google and Microsoft changed the game by utilizing advanced artificial neural networks to power their voice search using this voice-to-text technology, making possible a new generation of smart personal assistants, including Siri, Cortona, Alexa and the Google Assistant.

AI-integration into the private and business sectors is abundantly clear and growing at an impressive rate. But this poses the important question of who takes moral, ethical and legal responsibility for the action of increasingly ubiquitous and independent AI-driven systems, robots and technology? Should it be the manufacturers, programmers or the users? Should it even be, at the point where these systems acquire higher levels of cognition, the robots themselves? Different AIheavy industries have approached these questions in distinct ways.


HOW IS AI CURRENTLY REGULATED? AUTONOMOUS VEHICLES Google, Tesla, Apple and Uber have been in the news as they have raced to the forefront of the autonomous car movement, but the traditional automakers are now quickly catching up in the race to market the first fully autonomous vehicle. Tesla has had their Autopilot system in their vehicles for several years, with regular updates to increase automation. Uber is operating autonomous cars in Pittsburgh as a test project, and recently acquired the self-driving truck startup, Otto, for a reported $680 million. Nissan and Google have said they will have a self-driving car available to

the public by 2020. Volvo and Ford are on record with hopes to have versions out by 2021. This autonomous vehicle boom has created a technology-based regulatory need unlike anything since the advent of the internet. The Obama administration set aside $4 billion in the 2017 budget for Autonomous Vehicle development, and the National Highway Traffic Safety Administration (NHTSA) began working with the Department of Transportation (DOT) on operational guidelines for autonomous vehicle testing and regulation, devising a “model” policy intended to assist states in formulating local regulations that foster, rather than hinder, the development of autonomous vehicles. The DOT and NHTSA co-developed policy that resulted from that partnership and was entitled “Federal Automated Vehicle Policy.” The joint DOT-NHTSA policy is designed to serve as a foundation for future regulation, specifying the

portions of autonomous vehicle regulation to be left to states and the portions where consistent federal regulation is required. “The reality is that the technology is here (subject only to being fine-tuned), but the regulatory scheme is causing some delays,” according to Butler-Snow attorney Arthur D. Spratlin, Jr. “Our existing automobile laws are becoming more outdated day-by-day as AV technology continues to advance. Many argue that these current state laws related to the testing and rollout of AVs are doing nothing but stifling that technology.”

Building upon that initial regulatory document, the DOT/NHTSA recently released their updated set of voluntary guidelines for driverless cars. The new guidelines, called the “Automated Driving Systems 2.0: A Vision for Safety,” provide guidance for auto manufacturers, developers and states, as well as clearly illustrate the federal government’s support for this emerging market of selfdriving cars. This new set of guidelines is designed to foster future innovation in the market. “The Federal Government wants to ensure it does not impede progress with unnecessary or unintended barriers to innovation,” according to the guidelines. “The DOT has a role to play in building and shaping this future by developing a regulatory framework that encourages, rather than hampers, the safe development, testing and deployment of automated vehicle technology.” But autonomous vehicle regulation has important purposes beyond fostering innovation, including, safety, especially. “After decades of decline, motor vehicle

fatalities spiked by more than 7.2 percent in 2015, the largest single-year increase since 1966,” according to that 2017 DOT/ NHTSA document. “The major factor in 94 percent of all fatal crashes is human error. So ADSs have the potential to significantly reduce highway fatalities by addressing the root cause of these tragic crashes.” But will regulation designed to foster innovation in the long term increase accidents in the short term? A 2016 car accident in Florida involving a Tesla with Autopilot is believed to be the first fatality involving a vehicle in autonomous mode.

After a yearlong investigation, the National Transportation Safety Board (NTSB) found that a Tesla system capable of automatically steering and controlling a car had “played a major role” in the fatal car crash. According to NTSB chairman Robert Sumwalt, “In this crash, Tesla’s system worked as designed, but it was designed to perform limited tasks in a limited range of environments. The system gave far too much leeway to the driver to divert his attention to something other than driving.” Safety concerns immediately lead to liability questions. The increased production of autonomous vehicles could potentially usher in new ways of viewing auto liability cases and insurance coverage. “If the shift to autonomous vehicles will result in fewer accidents caused by human drivers (i.e., a shift in responsibility from the driver to the car itself), then we are likely to see a shift from traditional auto insurance (purchased by the driver), to product liability coverage (purchased by the manufacturer),” said Spratlin, the Butler-Snow AV expert.

“Simply put, if the human driver is no longer “driving” the vehicle, then how is the human liable under a typical negligence analysis?” “Products liability law requires product makers to anticipate and design against foreseeable uses and even misuses of their products,” said Andrew McClurg, professor and Herbert Herff Chair of Excellence in Law at the University of Memphis School of Law. “Google, for example, embarked on a completely different approach to self-driving cars from Tesla after its testing showed it might not be possible for humans to snap back to “situational

awareness” in dangerous circumstances. Google decided to skip over the autopilot option and eliminate the driver from the equation altogether, compensating by making less dangerous vehicles that, among other things, travel at slower speeds.” Should we expect to see a sea change in the way liability and tort law is affected by AI? Probably not, according to McClurg. “Unless legislatures or regulatory bodies impose different rules, if injuries occur, even the most cutting-edge technology will be evaluated by age-old tort principles.” Other potential legal and regulatory concerns run the gamut from licensing, insurance, infrastructure, cyber-security, privacy, ethical dilemmas and licensing, just to name a few. With the federal government’s stance heavily slanted toward assisting this industry’s success, these issues will need to be resolved sooner rather than later.

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F DA & H E A LT H C A R E The U.S. Food and Drug Administration (FDA) is already a regulatory juggernaut, but with the incredible uptick in AI technology, there now looms the impending regulatory challenges that come with AI in medicine. According to a recent report from “Research and Markets,” the overall market for AI in health care is expected to reach $7.98 billion by 2022, at a compound annual growth rate of 52.68% between 2017 and 2022. AI, and in particular machine learning, powers more and more medical device software in today’s health care industry. And as is the nature of machine learning, it is always changing, learning and improving, which results in rapid product changes. For the FDA and its regulators, these sorts of on-the-fly changes to an algorithm determining when new products enter the market would normally be a workload nightmare. However, a new digital health unit created by the FDA aims to speed up that regulatory process in order to keep pace with technology. The new group contains over a dozen engineers — with specialties like software development, AI, cyber security, cloud computing and more — to help ready the agency to regulate the future of health care. Over the past year, the FDA has issued several documents intended to help describe their current advice and guidance on the future of digital health care. These guides help developers know what the FDA does and does not regulate as a “medical device.” That’s an important subgroup, as it could contain many popular health and wellness apps that utilize AI, but do not require as much FDA attention since they don’t pose a high risk to the public. But it could also include devices using machine learning algorithms that could help diagnose such illnesses as cervical cancer or predict heart attacks, devices which require close regulatory scrutiny of FDA reviewers. “When you start adding analytical AI for any image analysis — think of detecting cancer or some serious disease — at that point, people need to know when that

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detection means something and is real,” said Bakul Patel, the FDA’s associate director for digital health in a recent interview with IEEE Spectrum Magazine. AI AND AUTONOMOUS W E A P O N S SYST E M S Elon Musk’s recent dire warnings about AI and the need to regulate it hit home with many individuals who are afraid of what the technology will mean to the weapons and defense industries. In what sounds like the beginning of a science fiction film, Musk and some of the world’s leading robotics and AI experts have recently called upon the United Nations to ban the development and use of what they call “killer robots.” Elon Musk and Mustafa Suleyman, AI expert at Alphabet (Google’s parent company), are leading the group of over 100 specialists from 26 different countries calling for the ban on autonomous weapons. In a recent vote, the United Nations decided to begin formal discussions regarding weapons such as drones, tanks, and automated machine guns. This group of technology specialists sent an open letter to the UN calling for it to prevent the arms race that they state is under way for these killer robots. They believe without intervention, autonomous weapons will be the cause of a “third revolution in warfare,” similar to those that followed the inventions of gunpowder and nuclear arms. “Once developed, lethal autonomous weapons will permit armed conflict to be fought at a scale greater than ever, and at timescales faster than humans can comprehend,” the group’s letter states. “These can be weapons of terror, weapons that despots and terrorists use against innocent populations and weapons hacked to behave in undesirable ways.” As an indication of the already existing autonomous weapons already in place, a report released earlier this year cites Izumi Nakamitsu, the head of the disarmament affairs office, as saying that “technology is advancing rapidly, but that regulation has not kept pace.” In the same report,

“The Federal

Government wants to ensure it does not impede progress with unnecessary or unintended barriers to innovation.” she points out that some of the world’s military hot spots already have intelligent machines in place, such as “guard robots” in the demilitarized zone between South and North Korea. For example, according to reporting by the Washington Post, the South Korean military is using a surveillance tool called the SGR-AI, which can detect, track and fire upon intruders. The robot was implemented to reduce the strain on thousands of human guards who man the heavily fortified, 160-mile border. While it does not operate autonomously yet, it has the capability to, according to Nakamitsu’s report. The Pentagon has tested groups of miniature drones — raising the possibility that the military could send groups of these drones into enemy territory equipped to gather intelligence, block radar or — aided by AI-based, facial recognition technology — carry out assassinations. From the United States to Russia to the United Kingdom to China, many governments are already very interested in putting rapid advances in AI to military use. The question is whether or not the United Nations and other leading AI regulatory bodies will stop it.

G E N E R A L A I R E G U L AT I O N In a late 2016 interview with WIRED magazine, former President Barack Obama summarized our government’s regulatory approach to AI succinctly and with a good deal of accurate foresight. “The way I’ve been thinking about the regulatory structure as AI emerges is that, early in a technology, a thousand flowers should bloom,” said President Obama. “And the government should add a relatively light touch, investing heavily in research and making sure there’s a conversation between basic research and applied research. As technologies emerge and mature, then figuring out how they get incorporated into existing regulatory structures becomes a tougher problem, and the government needs to be involved a little bit more. Not always to force the new technology into the square peg that exists, but to make sure the regulations reflect a broad base set of values. Otherwise, we may find that it’s disadvantaging certain people or certain groups.” That’s an accurate description of how the U.S. government has approached the issue, whether it was through President Obama’s direction or happenstance. “It’s not clear to me that special regulations need to be created for AI,” said Andrew Olney, associate professor at the Institute for Intelligent Systems at the University of Memphis. “Rather we need to extend existing frameworks, and this will require better public understanding of AI.” Regulatory responses will become even more complicated as new AI technologies emerge. For example, “reinforcement learning” is a major focus for AI researchers and regulators today. This method allows AI models to learn from their past experiences, and unlike other avenues of creating AI models, reinforcement learning forces AI to determine the best course of action in a complex scenario by utilizing a grading system for the model and forcing it to achieve the highest score. How will our legal system deal with AI devices and models that utilize this method?


Consider one potential real-world scenario: An AI-controlled traffic light learns (through reinforcement learning of its own) that it is the most efficient outcome to change the light one second earlier than previously done, but this action actually ends up causing more drivers to run the light and causes more accidents. Who is liable? Our traditional legal system generally only imposes liability where the developer was negligent or could foresee harm. In reinforcement learning where the AI has learned on its own and made an autonomous decision that wasn’t strictly programed but learned, there is no fault on the part of humans and no foreseeability of an injury, so traditional tort law would suggest the developer is not liable. It seems that it’s not always a clean-cut situation when it comes to AI liability. “That classic legal answer applies,” says professor McClurg. “It depends. With regard to a self-driving vehicle that causes injury to the driver or others, the driver could be responsible for negligence in operating it, and the manufacturer could be liable for any product defects determined to have played a role.” So, is an AI device liable for its own actions? Traditionally, we do not regulate non-human behavior. But should manufacturers and developers be liable when it is foreseeable that an AI algorithm could cause harm? A first step in establishing standards seems to already be taking place. The previously mentioned AI group convened by Elon Musk, as well as OpenAI (also convened by Musk), are working to establish standards that include the specific definitions for neural networks architecture, as well as quality standards for AI adherence. Additionally, these groups are involved in discussions with governments around the world to ensure that regulations are drafted in such a manner as to ensure public safety while also leaving the door open for innovation.

THE FUTURE:

AI OVERLORDS OR AI REGULATIONS? There are clearly significant hurdles ahead when it comes to regulating AI. Many experts involved in the discussions are still asking themselves, CAN this even BE regulated? What should regulations even look like? These questions are difficult to answer for any technology in the development stages. Typically, regulations are applied after something bad has happened, not in anticipation of a particular technology becoming dangerous, as is the case with AI and machine learning. But the stakes in the AI setting are high. In the present environment, pressing issues include job losses in sectors hit by AI advances (manufacturing, agriculture, etc.), autonomous vehicle safety, algorithmic decision-making (reinforcement learning), and “bots” driving social media. In the longer view, potential AI-driven impacts run the gamut of benefits and risks to humankind, from the development of

a more efficient and utopian society to the possible extinction of humanity as we know it in the form of science fiction “Terminator” style scenarios. Elon Musk gained a tremendous amount of recent attention with his comments regarding the need for immediate government oversight and regulatory involvement with the AI industry. But while some argued that his comments were inflammatory and overly dramatic, few researchers suggest that AI poses no risk whatsoever. Musk’s solution: “The right order of business would be to set up a regulatory agency – initial goal: gain insight into the status of AI activity, make sure the situation is understood and, once it is, put regulations in place to ensure public safety.” AI plainly has the potential to improve our health, well-being and societal efficiency. But the question remains: what forms of regulation will best help make this future a reality?

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The legal industry, like most other business sectors, has seen important technological advances in recent years. From pagers, fax machines, car phones, email, cell phones and smart phones to the internet itself. But one new technological advancement promises even greater changes. Artificial Intelligence (AI) is poised to change the legal profession in ways that we are just beginning to understand.

by Ryan Jones

ARTIFICIAL INTELLIGENCE IN THE LEGAL INDUSTRY LEGAL RESEARCH

WHERE IS IT BEING UTILIZED?

Tirelessly researching a topic, pouring through old cases, verifying fact after fact, collecting data — this is all work with which junior attorneys and paralegals are all too familiar. And it’s just the type of work AI is poised to revolutionize. AI-driven software and “bots” are functioning more like semi-employees than computer programs at firms across the country. Over the past year and a half, more than 10 major law firms have contracted the services of Ross, a robotic lawyer powered partially by IBM’s AI program Watson in order to perform various aspects of legal research. Ross itself is designed to replicate, as closely as possible, the experience of working and communicating with a real live attorney. It understands natural-language questions and can provide specific and even analytical answers. Legal industry stalwart Baker Donelson has also made recent largescale investments in AI software to aid in the firm’s legal research and analysis. The firm recently added AI software program Kira to its AI arsenal. Kira can analyze hundreds of contract documents in only a matter of seconds, work which the firm says used to take its attorneys anywhere between 40–60 hours. Baker plans to utilize Kira for more complex

acquisitions and financings for businesses with large contract bases, such as retailers, wholesalers, service providers and franchisors, according to a recent article in the Memphis Business Journal. It also comes down to plain old customer service. “Our goal is always to provide the very best representation we can,” said Buck Lewis, shareholder at Baker Donelson and chair of the ABA Pro Bono Committee. “So if artificial intelligence enables us to do better work faster, then the advantage is in providing the best client service possible.” Earlier this year, Baker made another AI “hire” that helped secure their place as one of the more tech-friendly and innovation-ready firms in the Mid-South. They hired CARA (Case Analysis Research Assistant) in the spring of 2017 to help generate reports of arguments used in cases similar to those handled by its attorneys. Both innovative acquisitions and use of AI tools are intended to reduce the costs of legal services while also increasing accuracy and quality. But a human attorney is still essential to the process according to William S. Painter, the firm’s chief innovation officer, in the same Memphis Business Journal interview. “It’s a combo of AI tools to whittle it down, and, at the end of the day, a human being has to lay an eyeball on it,” Painter said. “It’s our work product, and it is incumbent on us to make sure it is accurate and complete.” 21


CONTRACTS

The average legal department or firm devotes hours of billable time and extensive effort to reviewing and drafting contracts. Not only does this work increase costs for clients, it can delay the completion of transactions. AI-based services can help drastically shorten the time it takes to review a contract and get it ready for a signature. Many AI solutions learn to spot legal issues in contracts and provide the user with relevant information on contract terms, allowing attorneys to focus their reviews on the most relevant sections of the contract, while being assured that the details are in order. This frees up countless hours for attorneys and saves clients money. Some companies have successfully developed their own in-house AI solutions. According to a recent Bloomberg article, JPMorgan Chase & Co. has created its own AI-based software that accomplishes in seconds what it claims normally took their in-house lawyers 360,000 hours to achieve. The JPMorgan software, called COIN (short for Contract Intelligence), performs work on interpreting commercial-loan agreements in a matter of seconds. The software is less error-prone, they claim, and never calls in sick or asks for vacation. The savings (and potential savings) in time and money are astronomical. Attorneys also have to regularly ensure that contracts are not hiding obligations, liabilities or other risks. Additionally, law firms and in-house legal teams have to keep up-to-date with the constantly changing compliance rules. AI “due-diligence” software is able to do all of these things almost instantly, providing time savings of up to 20–40 percent on some routine tasks. This sort of software is already being used to review billions of dollars in mergers and acquisitions transactions every year. The technology can make sure that parties are notified of any pending contract expirations, facilitating their prompt renewal. It also allows users to create reports that show which contracts will expire and in what timeframes, all tasks that normally took countless hours to perform. Companies and services such as Seal, Luminance, LegalSifter, Ravn and Kira Systems all offer contract-assistance services in their AI software products, products now being used by some of the world’s largest corporations and law firms. E-DISCOVERY & COMPLIANCE

E-discovery may be the oldest and most well-known use of AI in the law. Originally, AIbased programs used to search for keywords in enormous amounts of data. Eventually, AI-related e-discovery was used to connect strings of emails and eliminate duplicate documents. Now, AI-involved e-discovery has taken the next leap forward, searching documents for tone, concepts and even context with what is known as predictive coding. Predictive coding is also revolutionizing compliance work. AI-driven computer systems can provide organizations with the ability to process huge amounts of data by searching for particular documents and screening communications for the usage of certain words or phrases, or by scanning financial transactions for signs of money laundering or other violations. AI-driven compliance systems are especially prevalent and promising in the finance sector, where attorneys and regulators are faced with demanding new regulations and massive amounts of often unrelated datasets. Traditionally, a system could only search a standalone database, but with today’s technology, it is possible to search multiple sources of structured or unstructured data for new levels of insight, enabling users to analyze complex patterns across diverse datasets and accurately identify anomalies and possible cases of fraud. 22


CHATBOT LAWYERS

AI is also replacing traditional lawyers through the proliferation of “chatbot” attorneys or “robolawyers.” Increasingly sophisticated, the best AI chatbots now deliver an experience where the customer cannot even tell if they are working with a human or a computer. The proliferation of legally focused chatbots started with an 18-year-old British entrepreneur and his efforts to help people fight their parking tickets. Joshua Browder, now a junior at Stanford, designed “DoNotPay” two years ago, and in the time since he estimates that the “the world’s first robot lawyer” has helped defeat 375,000 parking tickets. Beginning in September 2017, DoNotPay’s free legal counsel was available in all 50 states in U.S., as well as the United Kingdom. Additionally, since finding initial success with parking tickets, Browder has expanded his chatbot’s services to provide free legal aid to the homeless and again this year to help refugees seeking asylum in the United States and Canada. DoNotPay can even help you sue Equifax in small claims court if you were one of the millions affected by the Equifax security breach earlier this year. In an interview with The Verge, Browder details how he recruited volunteer and part-time lawyers to help develop the legal aspects of the bot. He also worked with attorneys from different charities and states to make “locality-specific” bots that detect the user’s location and only show locally relevant results. DoNotPay now allows the user to type in specific questions, such as “I got an unfair parking ticket,” for a total of 1,000 different categories. If the chatbot successfully determines the correct issue, it can generate an appeal letter the user can print and sign.

On the heels of the success of DoNotPay, a plethora of other legally focused, AI-driven chatbots have emerged, including the following: - Coralie – A virtual assistant that helps survivors of military sexual trauma connect with services and resources. - Docubot – A bot that works through lawyers’ websites to help consumers generate legal documents and facilitate client intake. - LawDroid – A smartphone app that helps users incorporate a business for free. - Legalibot – A Facebook Messenger app that composes legal documents and contracts. - Lexi – A bot that generates free privacy policies and non-disclosure agreements. - RentersUnion – A bot that analyzes a user’s tenancy agreement (for London residents) and then generates letters or recommends appropriate action. - Speak with Scout – A Facebook Messenger app that provides legal guidance and references to lawyers. While chatbots are only now entering the limelight, law firms and legal departments have long used “expert systems” to help specific clients in specialized areas. For example, Littler’s Compliance HR and Norton Rose Fulbright’s ContractorCheck have been highly successful in their specialized fields of use. But today’s legal chatbots are more conversational and advanced in their use of AI. And as the technology evolves, these “robolawyers” will become even more sophisticated in the tasks they perform and the services they provide.

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who and what will be entitled to future patent protection.

AREAS OF INTEREST

INTELLECTUAL PROPERTY

AI’s impact on the Intellectual Property (IP) field has two main prongs. One has to do with the complications any new technology brings to the table and the ways the IP industry will need to adapt to the growing use of AI in society. The second focuses on the way AI can help those practicing IP and patent law. With AI systems already being used to write and publish news as well as compose music, the amount and diversity of AI-produced content is certain to grow over the next several years. The legal industry and regulators will need to determine who owns the rights to that AI-created content. So what to do if you or your company are utilizing AI-driven software to create content? “Currently, the U.S. Copyright Office will not register a work that was created by a machine without any creative input from a human,” said Jeremy Bock, a professor at the University of Memphis School of Law specializing in IP and patent law. “However, the case law has yet to be developed on AI-created works. In the meantime, some options for protecting AI-created work would be to give the copyright to the human(s) who arranged for the work to be created or the entity that commissioned its creation.” Machine learning and AI-driven software have the potential to redefine how the legal industry defines an “inventor,” and, in turn, 24

“An inventor is someone who contributes to the conception of an invention,” according to professor Bock. “The current case law defines ‘conception’ in terms of a mental act: the formation in the inventor’s mind of a definite and complete idea of an operative invention. Arguably, the case law might be read as allowing only humans to be ‘inventors,’ those who are capable of conceiving of an invention. Because only ‘inventors’ may apply for patents in the U.S., it is unclear whether technologies created by AI without any human intervention would be entitled to patent protection at the present time.” A business’s intellectual property is often its most valuable asset. For companies with trademarks they need to protect and brand identities to promote, this could potentially mean employing more than two dozen different digital platforms. As in other sectors, AI can once again be relied upon to increase efficiency and reliability. By assisting with traditionally timeconsuming research and administrative tasks, AI has the potential to free up time and decrease cost from the labor involved in inputting and analyzing data, freeing law firms and attorneys to focus on more strategic issues and facilitating high-speed access to more accurate and reliable data. AI can also help IP professionals gather and generate insight from data to help shape company performance.

ANTITRUST

With AI algorithms becoming increasingly adept at monitoring and setting prices in a more and more independent (from humans) manner, antitrust attorneys and

monitors may be on the verge of a paradigmatic shift in the way they approach antitrust problems and investigations. So far, though, we are not at the level of algorithms and AI bots actually “colluding.” We already have “pricing” bots that are capable of engaging in what attorneys would call “parallel conduct” if performed by humans, but we’re not at the point where the industry has seen the pricing bot of one company actively collude with another bot and form a true robot “conspiracy” under the Sherman Act. AI antitrust cases thus far have only dealt with price-fixing agreements among humans carried out through AI-derived algorithms. So far, these case have not required the Department of Justice (DOJ) and antitrust attorneys to change how they handle antitrust cases. The DOJ’s “first online marketplace prosecution” United States v. Topkins is the clearest case so far involving AI and antitrust. According to the DOJ press release, “Topkins and his co-conspirators agreed to fix the prices of certain posters sold in the United States through Amazon Marketplace. To implement their agreements, the defendant and his co-conspirators adopted specific pricing algorithms for the sale of certain posters with the goal of coordinating changes to their respective prices and wrote computer code that instructed algorithm-based software to set prices in conformity with this agreement.” Essentially, the conspirators agreed to create price-setting robots that would learn to fix prices. Because of that conduct, shoppers faced the same prices for the same products no matter what seller they chose in the Marketplace, thereby eliminating price competition among sellers.

Taking it a step further, AI can create barriers to entry and monopoly problems, according to John Newman, assistant professor of law at the University of Memphis Cecil C. Humphreys School of Law and former attorney at the Department of Justice antitrust division. “The utility of most AI programs is increased data you can feed into the program,” said Newman. “Search function algorithms get better the more data you can feed through them. When one company acquires a dominant position — whether because of first-mover advantage, path dependency, network effects, or all of the above — in a data-driven market, the flood of data that company can feed its AI program can entrench the dominant position. Rivals don’t have access to the same data flood and have a much harder time designing a program that can effectively compete.” So what are the future problems with AI and antitrust going to be as the technology evolves? “For purposes of Section 1 of the Sherman Act, artificial intelligence may pose unique issues because of an AI’s ability to communicate and coordinate independently with humans, computers and other AI. Unlike most pricing algorithms that mechanically apply preset formulas based on predetermined inputs, artificial intelligence also has the capability to learn from past behavior and adjust strategies in real time,” per a recent report from the law firm of Sheppard Mullin. Professor Newman gives us some other interesting scenarios, as well as a few potential concerns. “This sort of technology does raise unusual issues for antitrust law,” said Newman. “For example, antitrust places a great deal of weight on whether there has been an “agreement” among


conspirators. If one gas station owner sees his rival raising prices by $0.05, then decides to raise his own price by $0.05, that doesn’t violate antitrust laws. But if the two owners meet and agree to raise their prices by $0.05, they can be prosecuted criminally, pay big fines and potentially serve time in prison. In Topkins, the (human) conspirators all explicitly agreed among each other to adopt these algorithms, so the “agreement” requirement was pretty clearly met. But what if the humans had not explicitly agreed to use the algorithms? What if each human individually decided to use this particular type of algorithm, then the algorithms themselves effectively agreed on price? Would that violate antitrust law? Or is this a way for businesses to make an end-run around antitrust laws?”

Technology causes change and upheaval across all sectors, the legal industry included, every time a major shift in innovation occurs. While antitrust law and the Sherman Act seem to have been resilient to change in the past, this may change as AI and pricing algorithms become more advanced and commonly used. The more similar to humans AIs become, the more lines begin to blur about the how to apply traditional antitrust laws. DATA PRIVACY

“AI requires a ton of data, so the privacy implications are bigger,” said Andras Cser, vice president and principal analyst at Forrester Research in an interview with TechTarget. “There’s potential for a lot more personally identifiable data being collected. IT definitely needs to pay attention to masking that data.” Health-related apps and mobile devices such as Fitbits are increasingly prevalent in our society. Most of these utilize AI in some form and could pose a significant threat to the user’s data privacy. This could become an issue if, for example, a company encouraged its employees to use a

health app or gave them Fitbits in order to collect data for insurance purposes. The AI data from that app or device could reveal a health condition of which the employer (or even employee) was unaware, creating a dilemma for the employer who chooses to act on or ignore that information. One way to deal with privacy issue is to mask the data collected, or anonymize it, so that AI software cannot learn specific information about a specific user. Some companies have even taken a similar approach with their regulatory compliance, i.e., when blind enforcement policies use threat detection in order to see if a device follows specific regulations but don’t learn any identifying information in the process. Apple has taken this same approach in its device manufacturing. In iOS 10, they employed differential privacy, which recognized app and data usage patterns from users but “masked” the IDs of the individuals.

Data and security laws are also evolving differently from country to country. For instance, the U.S. has relatively lax protection in place for the personal privacy of employees, according to Joseph Jerome, a policy counsel on the Privacy & Data Project at the Center for Democracy & Technology in Washington, D.C., in a recent interview with TechTarget. He also notes that employers in the U.S. can get away with almost anything as long as they are providing some notice or consent. In Europe, individuals have to be notified of any data gathered about them, and any data processing can be done only if there is a “legitimate” purpose such as investigating suspected criminal activity. Additionally, any data that is collected must be kept secure. Many interesting questions arise when you begin to dive into what is learned through AI and any associated algorithms used to collect private data. Who is responsible for the information that is learned? Is it the employer, the AI-based mechanism itself or the person that created the algorithm that powers the AI? These questions still await answers.

25


ETHICS

Even though the future of AI and the legal industry is still unfolding, attorneys would do well to prepare in advance for the onslaught of ethical issues and questions that will undoubtedly arise. For now, guidance for the AI-related ethical questions an attorney may face can still be found in the issues and concepts set forth in the Model Rules for Professional Responsibility, even though things may change as we develop software and machines that can equal or move beyond the human capacity to think and reason. But while context may change over time, the central ethical duty of competence remains unchanged. Citing the impact of technology, including AI, the ABA adopted the technology amendments to the Model Rules of Professional Conduct in 2012, with comment 8 to Rule 1.1 reading: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all

26

continuing legal education requirements to which the lawyer is subject.”

Confidentiality also comes into play in this AI-heavy legal future. Model Rule 1.6 states:

In substance, even though we are focusing on an incredibly complex technological advancement in the form of AI and its effect on how attorneys practice law, it does not matter what form the technology takes, as an attorneys are ethically bound to keep up with these advances in their practice.

“(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)”

“There is definitely an ethics component to dealing with the rise of AI in terms of how law is practiced,” said Brian Faughnan (JD ‘98), attorney at LewisThomason, who specializes in ethics and professional responsibility. “The simplest advice to offer at a micro level is that lawyers have to be knowledgeable about the kinds of technology they use and encounter in their law practice.” That doesn’t mean that an attorney needs to be an expert in AI algorithms or predictive coding or even use it in every case. But attorneys should know the technology exists and the ways it could benefit their clients.

“(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Attorneys will need to perform their due diligence in the selection of any vendors, programs or software they use and know what security measures those entities have in place to protect their clients information and privacy. A third and often debated area of ethical concern regarding AI issues relates to UPL, or the Unauthorized Practice of Law, which prohibits lawyers from practicing where they are not licensed. Model Rule 5.5 mandates that “A lawyer shall not practice law in a

jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.” Can an AI-driven system violate that rule? Experts tend to take two different stances on the issue. Either they believe that it would be technically impossible for a computer to ever engage in the unauthorized practice of law, or they believe that the use of that AI technology could never constitute the unauthorized practice of law as long as a human attorney is involved in the process. As is the case with much of the AI debate in the legal community, the ethical issues here dictate a wait-and-see approach. “I think the larger issue of being prepared for the continued evolution is much more difficult to address,” says Faughnan. “I tend to agree with the sentiment of folks like Richard Susskind that the shortterm impact of AI on law is being overstated while the long-term impact on what it will mean to be a lawyer is still severely underestimated.”


WHAT LIES AHEAD

It’s clear that traditional business models of the legal profession, including the “billable hour,” will come under increasing pressure from AI-driven systems. And we might even see an environment where substantial parts of the legal sector will compete for jobs with AI. It’s also evident that AI has tremendous time-saving potential for the legal industry, freeing up of attorneys to focus on higher-level work and increasing the efficiency and quality of service to clients. But will AI overtake the industry, ultimately replacing human lawyers with robots? Baker Donelson attorney Lewis offered an answer. “I don’t think AI will completely replace the jobs of young lawyers, but I do think it will reduce the demand for the work young lawyers do now at the beginning of their careers,” he noted. “There will always be a judgment component to the work of lawyers of all ages. I think it will be a very long time before AI can completely replace that component. Ultimately, human beings have to be responsible for the legal services they render.”

27


True Blue Interview

mber Floyd (JD ’10) is a senior associate at Wyatt, Tarrant & Combs LLP and was recently named as the recipient of the 2017 American Bar Association “On the Rise – Top 40 Young Lawyers” award. She was the only attorney in the state of Tennessee to receive the award in 2017. Additionally, Floyd is the Public Service Committee chair for the Tennessee Bar Association Young Lawyers division, which builds on her strong track record of involvement and commitment to community service and pro bono work in the Memphis community. ML asked Amber a bit about how she got to Memphis Law and the important lessons she’s learned along the way to becoming a Top 40 Young Lawyer in the country.

Amber Floyd

(JD ’10)

You have a unique story

I applied to. I was accepted

a scholarship opportunity

I have decided to stay in

later, here I am. Sometimes it’s

regarding how you decided to

to various law schools and

and I am glad that I did. So

Memphis. There is so much

about being in the right place at

attend law school. Can you tell

offered partial scholarships

many doors opened for me

work to be done here, and the

the right time. The scholarship

us a bit about how that event

to attend. But, one evening,

as a result of accepting the

city needs individuals who

certainly opened the door

led you to decide

I received a call from Dean

Wyatt scholarship. I had the

are committed to doing the

for me to be able to start and

to attend Memphis Law?

McClellan, and she told me

opportunity to clerk after my

work. Memphis is a city where

continue my career with Wyatt,

I decided to attend law school

that I had been selected for

first year of law school and

people who are interested in

but I worked hard to be where I

a full scholarship sponsored

continued to clerk part-time

community service and making

am today. A little luck and hard

an impact can plug in.

work can take you far.

You’ve worked at Wyatt, Tarrant

Can you discuss how

after a bad car wreck during my last year of college. The near-death experience put a

by Wyatt, Tarrant & Combs with a guaranteed summer

with Wyatt until graduation. I had the unique opportunity to grow with the firm, which

lot of things in perspective

internship with the firm after

for me. I realized that I was

my 1L year. It was an offer that

transition after graduation.

What route did you take to get

is to your life?

playing it safe with my

I couldn’t refuse.

career choices at the time

I have grown to love Memphis

there, and how important do

As a Nashville native, what

you think it was for you to be

I have always been a helper.

and decided that I was going to step outside my comfort zone and apply to law school. I applied to a number of out-of-state schools because I wanted to live outside of

drew you to law school in Memphis, and what things have kept such a successful young attorney like you in the Bluff City?

made for a relatively seamless

in my own way. It has an authenticity that you rarely find in other cities. I appreciate the city’s spunk and tenacity. However, there are a lot of

& Combs since graduating.

awarded their scholarship and

important community service

It’s just part of my personality. Service work has always been

participate in their summer jobs

important to me, and now I

program in ultimately pursuing

am in a point in my life and

your career there?

career where I can expand my

things that frustrate me about

I was not Wyatt’s first choice for

platform for helping others.

Tennessee. Memphis Law was

Ultimately, I decided to attend

the city, and in a weird way,

the scholarship. I was actually

My focus has never been on one

the only Tennessee law school

Memphis Law because of

those are the same reasons

second on the list. But, 10 years

isolated cause versus another.

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I am more interested in being a part of the collective movement for positive social change, particularly in Memphis. But if I had to identify one specific thing, I am passionate about breaking the cycle of poverty that has decimated communities for generations. And that’s a loaded cause because it implicates so many issues related to education, access to justice, and economic and social equality. It’s a big cause that requires a multi-faceted approach. People may see it as a daunting task at first glance, but as the old adage goes, “How do you eat an elephant? One bit at a time.” We have to look at these issues on a very fundamental level to identify opportunities to do something – big and small. What did you take away from your time at Memphis Law that you’d want to pass on to the next generation of law students? The importance of self-care! There is a certain pressure in law school to devote, or at least appear to devote, every waking moment to studying. Don’t get me wrong, studying is important. But, you also have to make time for other activities that will help keep you sane in law school. Go to yoga. Spend time with friends and family. Seek new adventures. Plus, employers take note of candidates with various life experiences, interests and hobbies. 29


Alumni Notes

’68

’77

Judge Richard P. McCully will retire after 23 years

Lancelot Minor III was selected for inclusion in the

of service as a U.S. Administrative Law Judge in the

2017 edition of The Best Lawyers in America. He was

northern district of Georgia.

also selected and listed in the 2017 edition of the MidSouth Super Lawyers.

’71

officer of Memphis-based Monogram Food Solutions,

2018 edition of The Best Lawyers in America in the

Inc., is the 2017 recipient of The Richard L. Knowlton

fields of Corporate Law and Real Estate Law.

Award, which recognizes innovative skills, corporate

J. Lawrence Barnett retired as Chief Counsel, Porteous

Karl Schledwitz, chairman and chief executive

David C. Porteous was selected for inclusion in the

Schledwitz

citizenship and exceptional business acumen.

Mississippi River Commission, and Regional Counsel

’78

Corps of Engineers Mississippi Valley Division, where he supervised the legal services of seven Corps offices

Tommy Estes, with the firm of Manier & Herod, P.C.,

from St. Paul, Minn., to New Orleans, Louisiana.

was recently selected by his peers for inclusion in the 2018 edition of The Best Lawyers in America in the field

Stephen McDaniel was honored with a Lifetime

of Trust and Estate law.

Achievement Award by the Estate Planning Council of Memphis.

’80

David Scruggs was selected for inclusion in the

Mark Allen has been named as executive vice

2018 edition of The Best Lawyers in America in the

president, general counsel and secretary of FedEx

fields of Administrative/Regulatory Law, Litigation and

Corp.

Controversy Tax and Tax Law.

W. Kerby Bowling was selected by his peers for

Scruggs

’74

Judge Robert “Butch” Childers retired after 34 years of service on the bench of the Shelby County Circuit

inclusion in the 2018 edition of The Best Lawyers in America in the fields of Administrative/Regulatory Law Bowling

and Labor-Law Management.

Court. Judge Childers also received the William M.

Frank Carney was selected by his peers for inclusion

Leech Jr. Public Service Award at the annual meeting of

in the 2018 edition of The Best Lawyers in America in

the Tennessee Bar Association.

the fields of Employee Benefits Law, ERISA legislation and Tax Law.

’76

Carney

Larry Rice was included on the AIOFLA list for Top 10

Memphis Chapter of Lambda Alpha International.

Client Satisfaction; the Top 100 Lawyers list by National Advocates; listed as the “Face of Divorce Law” by Memphis Magazine and in the 2017 edition of Super Lawyers. 30

Andy Raines was selected for membership to the

Raines


Elizabeth Stengel was selected for inclusion in the

’82

2018 edition of The Best Lawyers in America in the

Russell “Rusty” Hensley was selected for inclusion

areas of Construction Litigation and Construction Law.

in the 2018 edition of the Best Lawyers in America in the fields of Corporate Law as well as Mergers/ Acquisitions Law.

’89

Stengel

Hensley

Judge Lynda Jones recently oversaw the

Herbert B. Wolf Jr. recently joined the firm of Stites

establishment of the Music City Business Court Docket

& Harbison, PLLC as a partner in the business services

in Division IX General Sessions Court in Nashville.

and trusts & estate planning groups. He will serve ’93

clients from the firm’s offices located in Memphis and Wolf

Jones

Nashville, Tenn.

Caren Beth Nichol was selected for inclusion in the 2018 edition of The Best Lawyers in America in

’83

the fields of Commercial Litigation and Family Law

J. Steven Anderson was recently selected as a Master

Mediation. She also served as a mentor at the Memphis

in the Leo Bearman Sr. American Inns of Court. Nichol

Business Journal Bizwomen Mentoring Monday event.

’84

Getz

’96

Joseph Getz was selected for inclusion in the 2018

Charles “Chip” Cavagnaro Jr. was selected for

edition of The Best Lawyers in America in the areas of

inclusion in the 2018 edition of The Best Lawyers

Construction Law and Construction Litigation. He was

in America in the areas of Labor and Employment

also named the 2018 Construction Law “Lawyer of the

Litigation and Labor-Law Management. He also spoke

Year” by the same publication. Cavagnaro

at an August NBI seminar on HR law.

Danny Kail was appointed as the chief administrative

’97

officer of the Criminal Courts Clerks Office for the 30th

Kirk Caraway was selected by his peers for inclusion

Judicial District in Shelby County.

in 2018 for The Best Lawyers in America in the area of ’87

Employment Law – Management. Caraway

Amy Amundsen received the Justice Joseph W. Henry

John David Willet was selected for inclusion in the

Award for Outstanding Legal Writing by the Tennessee

2018 edition of The Best Lawyers in America in the field

Bar Association at its annual meeting in Gatlinburg,

of Construction Litigation.

Tenn., earlier this year. Daniel T. Robinson Jr. was selected for inclusion in

’99

Willet

the 2018 edition of The Best Lawyers in America in the

Michael L. Russell was listed as a “Lawyer of the

field of Corporate Law.

Year” in the areas of Labor Law and Union Practices in the 2018 edition of The Best Lawyers in America.

Robinson

31


Alumni Notes

Brian Yoakum was selected for inclusion in the 2018

’03

edition of The Best Lawyers in America in the field of

Kyle Cannon has been selected to the 2017 Mid-South

Commercial Litigation.

Super Lawyers Rising Stars list. Additionally, Cannon was named the co-chair of Big Wig Ball 2017, the Le Bonheur Children’s Hospital Associate Board’s largest

’06

Yoakum

George V. “Harley” Steffens IV was selected for

annual fundraiser.

inclusion in the 2018 edition of The Best Lawyers in

Kerryann M. Cook has been named a partner at the

America in the field of Construction Litigation.

law firm of McGivney, Kluger & Cook, P.C. Nick Rice was listed on the AIOFLA list for Top 10 Client

’07

Steffens

Satisfaction, the NAFLA Top 10 Under 40 list, listed by

Katy Laster was selected for inclusion in the 2018

Memphis Magazine as the “Face of Divorce Law,” as a

edition of The Best Lawyers in America in the field of

Top Professional by American Registry and as a Rising

Litigation-Labor and Employment.

Star by Super Lawyers magazine. ’04

Michelle Bliss recently became the Unit Training

L. Clayton Culpepper III was selected for inclusion

Coordinator and Internship Coordinator for the

in the 2018 edition of The Best Lawyers in America in

Maryland Department of Transportation State Highway

the areas of Commercial Litigation and Banking and

Administration.

Finance Legislation. Culpepper

Kacie McRee has been named a shareholder in Baker

Greg Pease was selected by his peers for inclusion in the 2018 edition of The Best Lawyers in America in the

’09

Laster

Donelson’s Knoxville office. McRee

field of Corporate Law.

Harkavy Shainberg Kaplan & Dunstan, PLC is pleased to

Erin Melton Shea in addition to practicing civil

member of the firm.

announce that Derek E. Whitlock has been named a

litigation law at Wiseman Bray PLLC, is now a Lead

’11

Beauty Guide with LimeLight by Alcone. Erin was also recently selected to the 2017 Mid-South Super Lawyers list as a Mid-South Rising Star.

Whitlock

C. Grace Whiting was recently named Chief Operating Officer of the National Alliance for Caregiving in Washington, D.C. in the 2018 edition of The Best

’05

Aaron J. Nash was selected for inclusion in the 2018 edition of The Best Lawyers in America in the field of Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law. Nash

32

Lawyers in America in the fields of Commercial Litigation and Family Law Mediation. She also served as a mentor at the Memphis Business Journal Bizwomen Mentoring Monday event.


Jere W. Mason was voted in as managing partner at

’12

Huffman Butler & Mason, PLLC.

Sam Fargotstein joined the firm of Martin Tate

Adam Selvidge recently accepted a position at the

Morrow & Marston P.C. as an associate. Jessica Farmer joined the firm of Rice, Amundsen & Caperton, PLLC as an associate attorney. Fargotstein

firm of Griffith Law, PLLC. Mason ’16

Mandy Strickland Floyd was selected to serve as a

Alex Roberson accepted a position as Specialist,

Legal Fellow with the ACLU of Tennessee in fall 2017.

Recruitment & Development in the Office of Charter Schools at Shelby County Schools.

’13

Jennifer Sneed co-presented alongside Judge Karen D.

Zachary Jones was selected by his peers for inclusion

Webster of Shelby County Probate Court, Div. 2, at the

in the 2017 Mid-South Super Lawyers list of Rising Stars.

Memphis Bench Bar Conference on the topic “Trends in

He was also listed in that publication as a Top Rated

Probate.”

construction litigation attorney in Nashville. Additionally, Jones spoke at the 2017 Structures Congress held in

John Woods III joined the law firm of Rice, Amundsen

Denver, Colorado, in spring 2017.

& Caperton, PLLC as an associate attorney. ’17

’14

Rebekka N. Freeman was honored by The Shelby

Dawn Campbell joined the law firm of Evans Petree

County Youth Court as The Attorney of the Year

PC as a law clerk.

(2016–2017).

Ryan Chambers joined the law firm of Wyatt, Tarrant

Charles W. Gilbreath II joined the firm of Chambliss,

& Combs, LLP as an associate attorney.

Bahner & Stophel, P.C. in its labor and employment

Campbell

Elizabeth Booker Houston accepted a position

practice.

as Regulatory Counsel with the Food and Drug

Kaleigh Thacker has joined the Cobb Law Group as an

Administration (FDA) in Washington, D.C. She was

associate attorney.

selected for this position as a Presidential Management Fellow. ’15

Tyler DeWitt has opened his own firm, The DeWitt

Pro Bono Programs with Memphis Area Legal Services.

Firm, with offices in Memphis and Brentwood.

Additionally, she recently received the Irvin Bogatin

Additionally, he was appointed by Governor Bill Haslam

Service Award from the Memphis Bar Foundation.

as a Commissioner on the Post-Conviction Defender DeWitt

Danielle Salton assumed the position of Manager of

Oversight Commission.

Salton

Lucas Cameron-Vaughn was hired as an associate at Transcend Legal in New York City and was also honored recently as a “Law Student for Justice” by the Tennessee Supreme Court.

33


Faculty Accomplishments

Lynda Black Professor Black will serve as the law school’s next faculty development director. She will serve for the remainder of this academic year and for the following two years.

Jeremy Bock Professor Bock’s article “Behavioral Claim Construction” was accepted for publication in the Minnesota Law Review. This article was selected for presentation at the 2017 Stanford/Harvard/Yale Junior Faculty Forum at Stanford Law School and at the 9th Annual Junior Scholars in Intellectual Property Workshop at Michigan State University College of Law.

Donna Harkness Professor Harkness made a presentation on “Ageism and Financial Decisionmaking: Protection v. Paternalism” at the North Mississippi Rural Legal Services Elder Law Conference held in Oxford, Miss., in August.

D.R. Jones Professor Jones was the lead commentator and discussion leader for a paper entitled “Institutionalized Privacy: A Typology of Privacy in Nursing Home Electronic Monitoring Laws” at the Privacy Law Scholars Conference held in Berkeley, California, in June. Professor Jones has been appointed to the National Technical Advisory Committee for LawArXiv. LawArXiv is a new, open access legal repository owned and maintained by members of the scholarly legal community. Additionally, she participated in a panel at the meeting of the Southeastern Association of Law Schools in July 2017. The panel discussed “Maximizing Scholarly Impact.”

Professor Bock was also an invited participant at the University of Houston Law Center’s Institute for Intellectual Property & Information Law National Conference on “Patent Law and Progress.”

Janet Goode Professor Goode was a co-presenter along with Timothy Flack, Esq., for “Writing the Prescription for a Better Education: The Physician’s Role in Assisting Children & Families in Navigating the School System,” at the Memphis Pediatric Society in July. Professor Goode was a co-presenter, along with Dr. Lauren Mutrie for “Collaborative Rounding in Medical-Legal Partnership: A Holistic, Interdisciplinary Teaching Model,” at the Canadian Association of Law Teachers and the Association of Canadian Clinical Legal Education Joint Conference, Victoria, BC, Canada, in June. She also served as panel chair and co-presenter with Tomar PiersonBrown and Dr. Lauren Mutrie for “Collaborative Rounding 360°: Teaching a New Dog Old Tricks, Collaborative Rounding in a Law School MedicalLegal Partnership Clinic, Law, Culture, and the Humanities Conference” at Stanford Law School in March.

34

Daniel Kiel Professor Kiel presented his paper “The Choice-as-Remedy Fallacy” regarding school choice policies in the United States and South Africa at the International and Comparative Urban Law Conference, co-hosted by the University of Cape Town and Fordham University. Additionally, professor Kiel was awarded the University of Memphis Distinguished Teaching Award in April 2017; this is a university-wide award. He was also awarded the the Unity in Diversity Award at the inaugural Unity in Diversity Scholarship Banquet put on by the law school’s Black Law Students Association. Finally, professor Kiel served on a panel at the Harvard Kennedy School of Government Dubin Leadership Service Seminar entitled “Schooling, the American Dream, and Price of Integration.”


Barbara Kritchevsky Professor Kritchevsky gave a presentation at the 2017 Moot Court Advisors’ Biennial Meeting in Chicago entitled “Can We Teach Students How to Proofread?” Her article “What Does Law Have to Do With It? The Jury’s Role in Cases Alleging Violations of the Law, Custom, and Standards” was accepted for publication in the Arkansas Law Review. Additionally, she will present her work in progress on naming conventions in the Restatements at St. Mary’s Law School in early 2018.

John Newman Professor Newman’s article “The Myth of Free” was accepted for publication in the George Washington Law Review. It was also selected as a winner of the SEALS 2017 Annual Conference Call-for-Papers competition. As part of that award, he presented on the article at the annual conference. Additionally, his essay “The Antitrust Jurisprudence of Neil Gorsuch” was accepted for publication in the Florida State University Law Review, and his article “Complex Antitrust Harm in Platform Markets” was published in the May 2017 edition of the Antitrust Chronicle. Finally, professor Newman was voted Professor of the Year by the graduating class of 2017.

Ernest Lidge Professor Lidge’s article “Wrongfully Discharged In-House Counsel: A Proposal to Give the Employer a Veto Over Reinstatement While Giving the Terminated Lawyer Front Pay” will be published this fall in Volume 52, No. 3 (2017) of the Wake Forest University Law Review. Additionally, Professor Lidge participated in a panel discussion entitled “Hot Topics” at the American Bar Association Section of Labor & Employment Law Committee on Practice & Procedure under the National Labor Relations Act, Region XIII in September 2017.

Andrew McClurg Professor McClurg received the 2017 Farris Bobango Faculty Scholarship Award for his article “The Second Amendment Right to be Negligent,” published as the lead article in the Florida Law Review. Additionally, he published the third edition of his law school prep book 1L of a Ride, which is assigned as required or recommended reading at law schools throughout the country. Professor McClurg also presented a webinar for the ABA Law Student Division on succeeding in law school and was recently quoted by the Wall Street Journal, U.S. News, and National Jurist Magazine.

Daniel Schaffzin Professor Schaffzin’s most recent article “Ten Years of Fighting Blighted Property in Memphis: How Innovative Litigation Inspired Systems Change and a Local Culture of Collaboration to Resolve Vacant and Abandoned Properties” was published in the ABA Journal of Affordable Housing & Community Development. Adjunct Professor Steve Barlow and Neighborhood Preservation Fellow Brittany Williams co-authored the article. Professor Schaffzin served as Senior Faculty for the inaugural Strategic Code Enforcement Management Academy hosted by the law school. Additionally, professor Schaffzine led a three-session workshop called “Navigating the Complexities of the Clinical Teaching Market” at the AALS Conference on Clinical Education. At the conference, he also presented a concurrent session entitled “Defining the Work? Teaching Boundaries Across Clinic Contexts.” Finally, professor Schaffzin was elected to the Board of Directors of the University Neighborhood Development Corporation (UNDC).

Jodi Wilson Professor Wilson’s article “Proceed with Extreme Caution: Citation to Wikipedia in Light of Contributor Demographics and Content Policies” was cited by the Supreme Court of Texas in the case of D Magazine Partners, L.P. v. Rosenthal.

35


Faculty Opinion/Editorial

On March 31, 2017, the Institute for Health Law & Policy at the University of Memphis School of Law held its fourth annual symposium, “Uncertain Care: The Future of the Affordable Care Act.” For two months leading up to the symposium, and in those first days of the Trump administration, it seemed unclear if or what sort of action the U.S. Congress would take and how the administration would respond (hence “Uncertain Care”). Then, one week before our symposium, House Republicans pulled the leading “repeal and replace” legislation, the American Health Care Act. While some suspected this meant the discussion was “dead,” and perhaps the most we could expect from our symposium was a postmortem, it soon became clear that efforts to “repeal and replace” would not end, but rather morph into different shapes with different leading voices. The upshot: uncertainty continued.

by Amy T. Campbell Director, Institute for Health Law & Policy and Associate Professor of Law

36

enforce the insurance mandate and allowance of state waivers for innovative state programs, even if action seems unlikely this year. The upshot: uncertainty continues.

services, risks of trauma’s negative impact on maternal and child health heighten, with potential lifelong health (among other) costs. If a community does not work with law enforcement and the justice system What to make of all this? Who to address the negative impact of knows, but it is now clear the witnessing violence amongst Symposium was far from a children, more children may need postmortem. The “uncertainty” of extensive mental health services or, care remains. Perhaps more critically, if missed, these children may what emerged from our time themselves end up in the justice together on March 31 is a core area of system with enduring physical and concern for communities across the behavioral needs, and at greater cost country, one that sadly receives little to communities. attention in coverage of the national The ACA, or whatever new “reform” debate. How do we ensure that emerges, cannot hope to address all attempts at reform do not throw out these issues with a “one size fits all” the baby with the bathwater, i.e., the growing recognition that so much of approach. Rather, we should incentivize communities to build what impacts health lies outside the upon that which works in the ACA “health system” and, thus, the need and continue to innovate in to address social determinants of approaches to addressing the social health to advance long-term determinants of health that have community health and well-being? long-term impact on community What of the recognition of the well-being. As we recognize “health community’s role in this endeavor? Fast forward to July 2017; with a in all policies” and the profound single thumbs-down by Senator John Our symposium kick-off panel “The influence of the local environment on Impact of Change and Our Vision for neighborhoods, might we also McCain, the newly invigorated Change: Local Leaders’ Perspectives” maintain “health” in all “reform efforts to pass “repeal and replace” legislation failed on the Senate floor. included health system policy proposals” that are equally as representatives and those from the Undeterred, new talk immediately encompassing, strategic, forwardmedical community, the health began of ways to repeal or replace looking and systemic? ACA. At one end of the spectrum lies department and insurers. Additionally, employer, nonprofit and Insurance coverage, subsidies, a new push for “Medicare for All,” a faith community leaders also shared mandates — all matter. And the ACA, single-payer system. Alternatively, a like any expansive legislation, merits their perspectives. A resounding leading proposal by Senators Bill iterative tweaking. However, let this theme across perspectives was the Cassidy and Lindsey Graham would need for policymakers to continue to work not block our view of the vital replace the ACA with a state block signs at the community level. grant approach; however, its chances support bottom-up innovation via Moreover, it has been said that a partnerships that cross sectors, looked so slim that it was pulled budget reflects an organization’s public/private/academic walls and before voting could begin. values; so, too, does our structural disciplines to advance health and The question now: are there any lives achieve quality healthcare in approach to health in the community left in this cat? Potentially, “yes”; the effective and efficient ways, including reflect our values. And, so, let us also day after pulling the Grahamview the health care “system” (and its — even emphasizing — ways beyond Cassidy bill, talk returned to reform) through the lens of hospital and physician office walls. bipartisan efforts to “fix” the ACA, community responsibility, beyond a The future for “health care” for the with focus on stabilizing the focus on individual or family right. community, then? If a community insurance market. Senators, the It is not simply a matter of cannot adequately support code “Problem-Solving Caucus” and individuals having access to or enforcement, substandard housing Governors all seem interested in receiving high-quality care. It’s also spreads, as do potentially thousands about the collective of individuals’ helping reshape U.S. health care more childhood asthma cases — and — i.e., the community — experience of policy. The current focus looks to ER visits. If a community cannot things like insurance affordability “health” as broadly defined and and cost-sharing subsidies, support new mothers through supported. On this, let certainty be administration commitment to preventive and early intervention our common cause.


A N K YO U H T

Professor Zawisza

Professor Christina Zawizsa, who spent 15 years guiding and nurturing a new generation of legal practitioners as a Memphis Law faculty member, retired in 2017. Professor Zawisza retired as a full Professor of Clinical Law and Director of the Child and Family Litigation Clinic that she designed and supervised. Before coming to the University of Memphis, Professor Zawisza was Legal Director of the Children First Project and Clinical Instructor at Nova Southeastern University Shepard Broad Law Center in Fort Lauderdale, Florida, from 1996 to 2002. Prior to that, she was founder and Director of Children First (now Florida’s Children First), as part of her work as a Senior Attorney for the Family/Juvenile/Education Unit for Legal Services of Greater Miami, Inc., which spanned from 1986 to 1995. Throughout her entire career, Professor Zawisza has represented children at all levels of the court system, from administrative tribunals to the United States Supreme Court, and was a legislative advocate in behalf of children and families before the Florida Legislature. Beginning in 2016, she served as the Child Welfare Advisor to the Tennessee Indigent Representation Task Force, which issued its final report and recommendations to the Tennessee Supreme Court on April 3, 2017. In addition, Professor Zawisza truly exemplified the spirit of pro bono service, receiving the 2017 Justice Janice Holder Pro Bono Award, the Tennessee Attorney for Justice Pro Bono Service Awards for both 2016 and 2015, the Faculty Advisor of the Year Award for the University of Memphis in 2012, and CASA of Memphis and Shelby County, Tennessee, Light of Hope Awareness Project Recognition in 2010. On behalf of the entire Memphis Law community, we’d like to express our deepest gratitude to Professor Zawisza for all she has done for the law school and for our students.


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Memphis Law: Fall 2017  

A publication of the Cecil C. Humphreys School of Law at the University of Memphis

Memphis Law: Fall 2017  

A publication of the Cecil C. Humphreys School of Law at the University of Memphis