Expert Analysis

• Defending Against Fail-Safe Classes With Rule 23

  

  The D.C. Circuit's recent decision in the case of White that there is no stand-alone rule against fail-safe classes deepens an existing circuit split — but defendants can still effectively attack fail-safe class definitions via different procedural arguments based in Rule 23, say Jeffrey Huberman and Andrew Soukup at Covington.

• Opinion

  Attorneys Should Have An Ethical Duty To Advance DEI

  

  National and state bar associations are encouraging attorneys to apply diversity, equity and inclusion practices in the legal profession and beyond, and these associations should take it one step further by formally recognizing ethical duties for attorneys to promote DEI, which could better the legal profession and society, says Elena Mitchell at Moore & Van Allen.

• Data-Driven Insights Are Key To Attracting Today's Clients

  

  As law firm growth slows and competition for clients increases, modern firms must rely on robust data analytics to develop the sector-based expertise and industry insights that clients increasingly prioritize in relationships with counsel, says Lavinia Calvert at Intapp.

• Ghosting In BigLaw: Why Better Feedback Habits Are Needed

  

  Not giving assignments or constructive criticism to junior associates can significantly affect their performance and hours, potentially leading them to leave the firm, but partners can prevent this by asking the right questions and creating a culture of feedback, says Rachel Patterson at Orrick.

• Rebuttal

  Law Needs A Balance Between Humanism And Formalism

  

  A recent Law360 guest article rightly questions the pretextual pseudo-originalism that permits ideology to masquerade as judicial philosophy, but the cure would kill the patient because directness, simplicity and humanness are achievable without renouncing form or sacrificing stare decisis, says Vanessa Kubota at the Arizona Court of Appeals.

• NFT Tax Guidance Shows IRS Interest In Crypto Enforcement

  

  The IRS' first ever guidance addressing the federal income tax treatment of NFTs indicates the agency could take a potentially aggressive stance in enforcing U.S. tax laws in the NFT and crypto spaces, which could have a significant impact on the self-directed IRA market, say attorneys at BakerHostetler.

• What ACA Preventive Care Ruling Means For Employers

  

  Though a Texas federal court's recent ruling in Braidwood v. Becerra paves the way for employers to reimpose cost-sharing requirements on preventive care, companies considering making these changes to their group health and welfare plans should first analyze the financial and social impacts, says Rachel Shim at Holland & Knight.

• Short Message Data Challenges In E-Discovery

  

  As short message platforms increasingly dominate work environments, lawyers face multiple programs, different communication styles and emoji in e-discovery, so they must consider new strategies to adapt their processes, says Cristin Traylor at Relativity.

• What's Next After High Court Stay On Abortion Pill Ruling

  

  The U.S. Supreme Court's recent stay of a Texas federal court's order invalidating mifepristone's U.S. Food and Drug Administration approvals provides a welcome antidote to the flurry of litigation surrounding the abortion drug, but its ultimate fate hinges on how the Fifth Circuit and Supreme Court will rule on the merits, says Eric Alexander at Reed Smith.

• Opinion

  Thomas Report Is Final Straw — High Court Needs Ethics Code

  

  As a recent report on Justice Clarence Thomas' ongoing conflicts of interest makes evident, Supreme Court justices should be subject to an enforceable and binding code of ethics — like all other federal judges — to maintain the credibility of the institution, says Erica Salmon Byrne at Ethisphere.

• Structured Settlements In Workers' Comp Cases: A Win-Win

  

  With interest rates rising, workers' compensation benefits decrease in price, so structured settlements in personal injury litigation may benefit both injured workers and the employer or carrier, and ultimately help settle complicated cases by bridging the gap between the demand and offer in negotiations, says Julio Martinez at Gilson Daub.

• How Cos. Should Navigate State AGs' Partisan ESG Approach

  

  As the politicization of the environmental, social and governance debate reaches new heights, general counsel should discuss issues affecting their company or industry with attorneys general on both sides of the aisle to minimize corporate risk, say Meghan Stoppel and Emily Yu at Cozen O'Connor.

• Joint Representation Ethics Lessons From Ga. Electors Case

  

  The Fulton County district attorney's recent motion to disqualify an attorney from representing her elector clients, claiming a nonconsentable conflict of interest, raises key questions about representing multiple clients related to the same conduct and highlights potential pitfalls, say Hilary Gerzhoy and Grace Wynn at HWG.

• Benefit Plan Sponsors Must Plan For COVID Emergency's End

  

  With the help of recent agency guidance, health plan sponsors must carefully navigate this transitory period between the abrupt end of the COVID-19 national emergency declaration and the upcoming end of the public health emergency, say Finn Pressly and Edward Leeds at Ballard Spahr.

• Lawyer Discernment Is Critical In The World Of AI

  

  In light of growing practical concerns about risks and challenges posed by artificial intelligence, lawyers' experience with the skill of discernment will position them to help address new ethical and moral dilemmas and ensure that AI is developed and deployed in a way that benefits society as a whole, says Jennifer Gibbs at Zelle.