Expert Analysis

• Secrecy Agreements And 1st Amendment: Finding A Balance

  

  The divided decision by the Fourth Circuit issued earlier this month in Overbey v. Baltimore raises many concerning questions about the potential First Amendment implications of nondisparagement clauses in government settlement agreements, says Alan Morrison of George Washington University School of Law.

• Risk Assessment Tools Are Not A Failed 'Minority Report'

  

  Contrary to Wednesday's op-ed in the New York Times, which refers to pretrial risk assessment tools as "a real-world 'Minority Report'" that doesn't work, these tools and the promise they hold to improve judges’ and magistrates’ decision-making processes should not be dismissed simply because they aren’t yet perfect, say professors at North Carolina State University and Duke University.

• Looted-Art Heirs May Find A Sympathetic Forum In NY Courts

  

  The New York Appellate Division decision last week in Reif v. Nagy — in favor of the heirs in a Holocaust looted-art claim — is noteworthy because of the manner in which it rejected the defendant’s claim of laches, just a few weeks after the Second Circuit had dismissed a Holocaust looted-art claim on those very grounds, says Martin Bienstock of Bienstock.

• Addressing Modern Slavery Inside And Outside The UK

  

  As the problem of modern slavery persists, U.K. companies must take a broad approach when rooting out slave labor in their supply chains, and should not ignore the risk posed by suppliers within the U.K., says Maria Theodoulou of Stokoe.

• High Court's Juror Exclusion Ruling Does Not Do Enough

  

  In Flowers v. Mississippi, the U.S. Supreme Court extended the rhetoric that exclusion of even one juror based on race is unconstitutional, but without further guidance, the principle the court seeks to uphold will continue to falter, says Kate Margolis of Bradley Arant.

• Artisanal Miners' Roadblocks To Justice: Is A Path Clearing?

  

  Efforts to give small-scale gold miners, who face displacement, pollution and violence at sites around the world, access to fair and functioning justice systems have met with apathy from politicians and fierce resistance from powerful business lobbies, but there are signs that this may be changing, says Mark Pieth, president of the Basel Institute on Governance.

• High Court Ruling Highlights Double Jeopardy Complications

  

  Although the U.S. Supreme Court's recent decision in Gamble does not change the application of the double jeopardy clause as interpreted by federal courts, the decision reinforces the significant impact of dual prosecutions and the risks for corporate and individual defendants, say Laurel Gift and Randall Hsia of Schnader Harrison.

• High Court's 'Separate Sovereigns' Ruling Is Good For Tribes

  

  The U.S. Supreme Court's decision in Gamble v. U.S. — reaffirming the so-called separate sovereigns doctrine — preserves tribal prosecutors' autonomy and ability to respond promptly to offenses without worrying about the legal repercussions on federal prosecutions, say Steven Gordon and Philip Baker-Shenk of Holland & Knight.

• Border Phone Search Questions Continue In Federal Court

  

  A Massachusetts federal court's eventual decision on cellphone searches at the U.S. border in Alasaad v. Nielsen will further illustrate the differences in how federal courts apply the U.S. Supreme Court's 2014 decision in Riley v. California to the warrant-requirement exception for border searches, says Sharon Barney at Leech Tishman.

• US Misdemeanor System Should Honor Principles Of Justice

  

  The U.S. misdemeanor system — which represents the vast majority of the country’s criminal system — is under-regulated, rarely scrutinized and rife with official rule-breaking. It's time we brought this enormous aspect of our democracy into the modern legal era, says Alexandra Natapoff of University of California, Irvine School of Law.

• Does Multidistrict Litigation Deny Plaintiffs Due Process?

  

  Judges in multidistrict litigation consistently appoint lead plaintiffs lawyers based on their experience, war chests and ability to get along with everyone. But evidence suggests that these repeat players often make deals riddled with self-interest and provisions that goad plaintiffs into settling, says Elizabeth Chamblee Burch of the University of Georgia School of Law.

• NLRB Case Hinders Workers' Path To Justice

  

  A little-noticed National Labor Relations Board filing has taken the U.S. Supreme Court's 2018 class action waiver decision and turned it into a justification for further limiting workers’ access to courts, says Sharon Block, executive director of the Labor and Worklife Program at Harvard Law School.

• Immigration Enforcement Under Trump Neglects Rule Of Law

  

  What President Donald Trump and his administration have described as a “humanitarian crisis” at the U.S. southern border is, in reality, a Trump-exacerbated crisis — which demands real solutions, not incendiary rhetoric, cruelty and lawlessness, says David Leopold of Ulmer & Berne.

• Calif. Lawmakers Should Stay Out Of USC Sex Abuse Case

  

  A pending settlement between the University of Southern California and 17,000 former students would resolve claims over the actions of a sexually abusive gynecologist. But proposed state legislation could undermine the settlement, says Shook Hardy partner Phil Goldberg, director of the Progressive Policy Institute’s Center for Civil Justice.

• Utah's Online Dispute Platform Is Streamlining Small Claims

  

  By making small claims litigation cheaper, faster and more convenient, especially for those facing difficulty appearing in court due to work schedules or geographic distances, an online pilot program in Utah is resolving cases that would otherwise go unfiled — or defaulted upon, says Martin Pritikin, dean of Concord Law School at Purdue University Global.