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Expert Analysis

• FDA's Hasty Policymaking Approach Faces APA Challenges

  

  Though the U.S. Food and Drug Administration has abandoned its usual notice-and-comment process for implementing new regulatory initiatives, two recent district court decisions make clear that these programs are still susceptible to Administrative Procedure Act challenges, says Rachel Turow at Skadden.

• The Metamorphosis Of The Major Questions Doctrine

  

  The so-called major questions doctrine arose as a counterweight to Chevron deference over the past few decades, but invocations of the doctrine have persisted in the year since Chevron was overturned, suggesting it still has a role to play in reining in agency overreach, say attorneys at Crowell & Moring.

• A Rapidly Evolving Landscape For Noncompetes In Healthcare

  

  A wave of new state laws regulating noncompete agreements in the healthcare sector, varying in scope, approach and enforceability, are shaped by several factors unique to the industry and are likely to distort the market, say attorneys at Seyfarth.

• Arguing The 8th Amendment For Reduction In FCA Penalties

  

  While False Claims Act decisions lack consistency in how high the judgment-to-damages ratio in such cases can be before it becomes unconstitutional, defense counsel should cite the Eighth Amendment's excessive fines clause in pre-trial settlement negotiations, and seek penalty decreases in post-judgment motions and on appeal, says Scott Grubman at Chilivis Grubman.

• Playing Mah-Jongg Makes Me A Better Mediator

  

  Mah-jongg rewards patience, pattern recognition, adaptability and keen observation, all skills that are invaluable to my role as a mediator, and to all mediating parties, says Marina Corodemus.

• Law School's Missed Lessons: Navigating Client Trauma

  

  Law schools don't train students to handle repeated exposure to clients' traumatic experiences, but for litigators practicing in areas like civil rights and personal injury, success depends on the ability to view cases clinically and to recognize when you may need to seek help, says Katie Bennett at Robins Kaplan.

• Juries Are Key In Protecting The Rule Of Law

  

  Absent from the recent discourse about U.S. rule of law is the crucial role of impartial jurors in protecting the equitable administration of justice, and attorneys and judges should take affirmative steps to reverse the yearslong decline of jury trials at this critical moment, says consultant Clint Townson.

• 4 Former Justices Would Likely Frown On Litigation Funding

  

  As courts increasingly confront cases involving hidden litigation finance contracts, the jurisprudence of four former U.S. Supreme Court justices establishes a constitutional framework that risks erosion by undisclosed financial interests, says Roland Eisenhuth at the American Property Casualty Insurance Association.

• What Employers Can Learn From Axed Mo. Sick Leave Law

  

  Missouri's recent passage and brisk repeal of Proposition A, which would have created a paid sick time benefit for employees, serves as a case study for employers, highlighting the steps they can take to adapt as paid sick leave laws are increasingly debated across the country, say attorneys at Foley & Lardner.

• Tips For Managing Social Media And International Travel Risks

  

  Employers should familiarize themselves with the legal framework governing border searches and adopt specific risk management practices that address increasing scrutiny of employees’ social media activities by immigration enforcement, say attorneys at Thompson Hine.

• How Attys Can Use AI To Surface Narratives In E-Discovery

  

  E-discovery has reached a turning point where document review is no longer just about procedural tasks like identifying relevance and redacting privilege — rather, generative artificial intelligence tools now allow attorneys to draw connections, extract meaning and tell a coherent story, says Rose Jones at Hilgers Graben.

• How To Strengthen A Case By Mastering Expert Witness Prep

  

  A well-prepared expert witness can bolster a case's credibility with persuasive qualifications, compelling voir dire responses and concise testimony that can withstand cross-examination, says Allison Rocker at Baker McKenzie.

• New FCPA Guidance Creates 5 Compliance Imperatives

  

  In light of new Foreign Corrupt Practices Act guidelines that mark a fundamental shift in enforcement priorities, companies should consider several specific steps to ensure compliance, from enhanced due diligence to robust whistleblower protections, says Andrew Wirmani at Reese Marketos.