Home Blog Page 5

3D Printing Practices Are Sprouting Everywhere

Richard Hermann
-
0

What’s Happening

3D printing (a.k.a. additive manufacturing) makes objects by layering materials based on a digital 3D model. A variety of 3D printing technologies are in use and the market is growing rapidly across many industries. At the same time, new and refined 3D printing technologies are being developed.

3D printing is transforming business and industry in ways not experienced since the rise of the computer, CAD/CAM, robotics and artificial intelligence. Enterprising law firms with vision are getting into the cutting-edge issues raised by the 3D printing revolution, positioning themselves for this brave new world by establishing discrete 3-D printing practices.

Why is 3D Printing Law Hot?

3D printing is triggering a revolution in the market. It is now possible to customize a product to an individual. It is changing the market from mass production to individually-targeted production. It is also getting cheaper all the time.

Today in 2018, 3D printing is a $12 billion market. Studies predict that the 3D printing industry will be valued at $20 billion by 2020, with comparable increases expected thereafter.

Elements of 3D Printing Law

3D printing is creating a flood of cutting-edge legal issues. The most affected practice areas at present are:

Intellectual Property

It is potentially possible to recreate any type of item by means of a 3D printer. I recently witnessed the making of a prosthetic hand that came with an opposable thumb and fingers able to grasp objects. Even food can be created via 3D printing. I witnessed a demonstration of a 3D printer that made pasta.

If any object can be 3D-printed, then additive manufacturing will give rise to an enormous expansion of pirated and counterfeit products. In order to copy an object, you just need two things: an electronic schematic of the product and a 3D printer. This means anyone can copy a lot of different designs, a tremendous threat to intellectual property (IP) protection. It will take a major effort for IP laws to catch up with 3D printing’s potential for abuse. In addition to its impact on patents, trademarks and copyrights, related issues such as trade secrets and false advertising must also be considered.

Product Liability

3D printers can also make very dangerous products such as guns, knives, and drugs. Pinpointing the liability for such products is going to be messy. Let’s hypothesize that someone manufactures an item at home that blows up. The liability for that logically reposes in the manufacturer, but in this context the person manning the printer is the manufacturer. Does liability rest with the owner of the printer, the manufacturer or supplier of the printer, or the person that printed and/or used the product? This question will be decided by legislatures and courts, but it will likely take years to achieve a universally acceptable result.

Privacy

3D-printed replicas may contain personal data. Surgical teams, for example, are beginning to use perfect 3D-printed copies of organs in order to anticipate any issues they might encounter during surgery. The issue of whether patient consent is required prior to copying his/her organ is unresolved, as is the hospital’s right to use that organ down the road for research and other purposes. In addition, there is the issue of information-sharing with insurers or other third parties.

There are many open questions about 3D printing and, as frequently happened in relation to any new type of technology, legislators and courts might not be fully prepared for them.

Who’s Doing It

A rapidly increasing number of major law firms have launched 3D printing practice groups. Boutique law firms that focus on providing 3D printing legal services are also emerging, but at a somewhat slower rate than “BigLaw” practice groups.

Corporate in-house counsel offices are beginning to seek attorneys who know something about the legal implications of additive manufacturing. This phenomenon is developing faster in certain industries. The fashion industry, for example, has no choice but to seek attorneys with some knowledge of the field. Fashion is probably the industry that is currently the most disrupted by 3D printing. It’s a $375 billion industry employing more than 300,000 people in the U.S. and a $1.4 trillion industry globally.

Where Should You Be Looking

Look for geographic areas with a large and diverse manufacturing base, a concentration of high-tech startups, strong healthcare, and/or collaborative training initiatives between academe and business.

Positioning Yourself

You will be able to present yourself as a stronger candidate if you learn as much as you can about the non-legal aspects of 3D printing technology (e.g., electrical, software and chemical characteristics); the history of additive manufacturing; the issues affecting manufacturers, distributors, retailers and end users of 3D equipment; the industries most affected; how it is changing both the business and home environments; and keeping current with developments in the field and the law.

What’s Next?

The cascade effect of 3D printing as it insinuates itself into new industries and markets, combined with the advent of new and improved 3D printing technologies, virtually guarantees that the law will have a hard time keeping up. Whenever there is a “law-technology gap,” that is very good news for attorneys because it translates to high demand for legal expertise and services.

For More Information

Beginner’s Guide to 3D Printing

Association of 3D Printing

3D Printing for Lawyers. Kennedy-Mighell Report Podcast

3D Printing Law. National Business Institute

 

Look for Jobs with Companies Repatriating Overseas Cash

Richard Hermann
-
0

The tax cut law that became effective on January 1, 2018 incentivizes companies that have stashed cash overseas to avoid a 35 percent corporate tax rate to bring that money back to the U.S. A one-time charge of anywhere between 8 and 15.5 percent applies to these repatriated funds.

Citigroup estimates that U.S. firms are holding more than $2.6 trillion abroad. Apple alone is responsible for $252.3 billion of these funds. Microsoft’s overseas cash pile amounts to $132 billion.

Since the law was enacted, a number of companies have announced their intention to take advantage of the much-reduced tax rate to repatriate cash they have stashed outside the U.S. Apple, Citigroup, Goldman Sachs, Bank of America, American Express, and JP Morgan Chase are among the companies that have announced their intention to repatriate overseas cash.

These and other repatriating firms are not under any restrictions as to how to use their cash bonanzas. Policymakers, of course, prefer that they reinvest in their businesses because this would do the most to stimulate economic growth. If they go this route, these companies become prime targets for generating new legal and law-related job opportunities.

However, if these funds are applied to share repurchases, that would cut down on the potential number of new legal jobs. Share buybacks are an attractive temptation because they generally result in immediate share price appreciation and signal investors that company shares are undervalued.

Goldman Sachs predicts that the companies that will benefit most from cash repatriation are those that hold the most cash overseas relative to their market capitalization. Translated into employment sectors, that means technology and healthcare firms. General Electric, Cisco, Citrix Systems, Amgen, Western Digital, Waters, Oracle, and Qualcomm fall into this category.

Targeting firms that are likely to be the biggest beneficiaries of this component of the tax law is a strategy that both experienced attorneys seeking to change jobs and graduating law students should incorporate into their job search campaigns.

Federal Administrative Law Judge Clerkships

Richard Hermann
-
0

Thirty-three U.S. government agencies employ more than 1,700 Administrative Law Judges (ALJs). In addition, a number of agencies also employ Administrative Judges (AJs). Each year, some (but not all) ALJs and AJs hire Law Clerks and/or Attorney-Advisors to assist them in performing their duties. These positions, when they are available, are filled largely by entry-level attorneys who have recently graduated from law school.

There is no central repository of information about these opportunities. The National Association for Law Placement compiles a list of likely hiring agencies typically at the beginning of each calendar year. However, this list is subject to constant churn, sometimes dramatically, depending on factors such as Congress enacting a budget for the forthcoming fiscal year and appropriating funds for clerkship hiring. Such positions are also contingent on announced and unannounced agency hiring freezes.

The best indicator of agency ALJ clerkship hiring intentions is recent past practice. The following agencies have been the most consistent in hiring ALJ Clerks and/or Attorney-Advisors to support ALJs and AJs in recent years:

Law Clerk positions are generally 1-year or 2-year term appointments. Attorney-Advisor positions may also be term-limited, but most are permanent.

ALJ and AJ Law Clerk and Attorney-Advisor hiring can change dramatically from year-to-year. For up-to-date information, it is important to check with the agencies and offices in which you are interested.

Sessions Injects Uncertainty into Cannabis Practice

Richard Hermann
-
0

Within four days of the effective date of California’s legalization of recreational marijuana  (January 1, 2018), Attorney General Jeff Sessions cast a pall over America’s burgeoning $7 billion cannabis industry that now encompasses 30 states, the District of Columbia, Guam and Puerto Rico, and is already generating hefty state tax revenues and creating thousands of jobs. Sessions threw uncertainty into this rapidly expanding economic sector by rescinding the “Cole Memorandum” that laid out the Justice Department’s enforcement priorities, basically saying that the Department would not prosecute marijuana use by adults. The Cole Memorandum was incorporated by the Rohrabacher- Blumenauer Amendment to the Commerce, Justice, and Science Appropriations Act for Fiscal Year 2014, which effectively protected state legalization programs from federal interference. The Amendment has been renewed every year since then.

The operative federal statute, The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (Oct. 27, 1970), prohibits the manufacture, distribution, dispensation and possession of marijuana and labels it a Schedule I controlled substance having “a high potential for abuse” for which there’s “no currently accepted medical use in treatment.”

Sessions’ rescission simply restates standard Justice Department policy that each U.S. Attorney’s office has discretion in choosing which laws to enforce pursuant to the U.S. Attorneys’ Manual. However, the implications regarding the rescission’s impact on enforcement of the 1970 Act could be a warning shot across the bow of state legalization activities.

We were at a similar point prior to the promulgation of the Cole Memorandum. California, for example, authorized the use of medical marijuana, stimulating a nascent industry that included growers, distributors, and retailers. Nevertheless, the Obama Justice Department selectively cracked down on a number of these industry players.

Today, state medical marijuana programs (currently legal in 22 states) are safe from federal prosecution, protected by the Rohrabacher-Blumenauer Amendment. The Amendment, however, is only effective if it is included in every annual Justice Department appropriations bill.

That bar, however, does not extend to state recreational marijuana programs now authorized in seven states and the District of Columbia. This would have a profound impact on the many law firms and hundreds of attorneys who are already active in cannabis practice as well as on those who aspire to building a marijuana law practice.

With the Cole Memorandum’s rescission, an attorney’s ability to effectively practice cannabis law may depend on how the broad prosecutorial discretion given to the U.S. Attorney in a legalization state is exercised. The uneven exercise of that discretion and/or the uncertainty Sessions’ action has injected into the industry may prompt Congress to clarify the current confusion in the law.

Water Law Goes National

Richard Hermann
-
0

Water law is rapidly becoming a very important practice area, due to population growth and movement, pollution, drought, and the impact of and extremes wrought by climate change. In addition to achieving “top-of-the-fold” prominence, it is also bursting through its traditional bounds

Water law has traditionally been (1) a state matter, and (2) confined to periodically drought-stricken and thirsty Western states. To the extent that water law crossed state lines, it was usually through a regional compact.

This appears to be changing.

A Federal Role?

This week the U.S. Supreme Court heard arguments in two water disputes between states that examined the role of the U.S. government in state vs. state water conflicts.

In Texas v. New Mexico and Colorado, the federal government intervened on the side of Texas, which argues that New Mexico is violating a 1939 compact by allowing its residents to take water that belongs to Texas. A court-appointed special master last year wrote in an interim report that the U.S. exceeded its authority in intervening in the case since it has no claim itself to the water and should be restricted only to bringing claims under federal reclamation law. The Supreme Court is only considering what the extent of the U.S. government’s role should be, not the merits of the water dispute.

In Florida v. Georgia, Florida sued Georgia to cap the volume of water Georgia takes from the Apalachicola-Chattahoochee-Flint River System. The impetus for the lawsuit was the collapse of Florida’s Apalachicola Bay oyster fishery. The federal government refrained from joining the litigation notwithstanding that the U.S. Army Corps of Engineers operates a series of dams and reservoirs along the contested river system. A court-appointed special master ruled last year that Florida showed “real harm” and at least “likely misuse of resources by Georgia,” but said that without federal involvement, there was no way to guarantee that a cap on Georgia’s water consumption would result in more water for Florida. The Supreme Court must decide whether to accept the special master’s ruling in favor of Georgia.

In addition to the potential for federal involvement in an area of law traditionally the province of the states, Florida v. Georgia is also unusual in that it involves an Eastern water dispute.

Traditional Water Law

States have fought vigorously to keep water rights within their exclusive domain. However, this is being threatened by water supply stresses caused by the factors cited at the beginning of this article. One of the consequences of this is that no longer do you find water law courses only in law schools west of the Mississippi River. In recent years, Eastern law schools have also launched such courses. Their curricula are similar to what has been offered for many years in Western law schools.

Water law encompasses how society allocates and protects this critical resource. Under that broad umbrella, specific issues include:

  • how water is allocated during periods of scarcity;
  • active conservation methods;
  • protection of threatened groundwater resources;
  • environmental limits on water development such as the Endangered Species Act and the “public trust” doctrine;
  • constitutional issues in water governance;
  • Indian water rights;
  • protection of water quality; and
  • interstate and international water disputes.

Legal and water policy debates are becoming more heated in inverse proportion to water scarcity. As a result, water law practice is spreading from its traditional Western and Southwestern niches to law firms throughout the country.

This emerging national practice is not a temporary phenomenon. Water law is going to be dynamic as far out as we can see. Moreover, it is moving in the direction of becoming an international practice, spurred by climate change, increasing cross-border pollution, and the preservation of the marine environment and resources.

Note. Aspiring water law practitioners are advised to become knowledgeable about the history of water development and politics.

Resources

  • Water Headlines. EPA Office of Water
  • Water Law in a Nutshell. David H. Getches (4th ed. 2009)
  • Cases and Materials on Water Law. George A. Gould, Douglas L. Grant, Gregory S. Weber (7th ed. 2005)
  • Law of Water Rights and Resources. A. Dan Tarlock (2011 – ), current version available on Westlaw
  • Legal Control of Water Resources: Cases and Materials. Joseph L. Sax (4th ed. 2006)
  • Principles of Water Law and Administration: National and International. Dante A. Caponera (2nd ed. 2007)
  • U.S. Geological Survey National Water Information System

Law…After a Fashion

Richard Hermann
-
0

Fashion Law, a practice area heretofore buried far below the radar, is emerging as a hot new opportunity for attorneys. Moreover, the fashion industry offers both exceedingly deep pockets and a practice that is dynamic and global in scope.

The Fashion Industry

Fashion is a $375 billion industry in the U.S. and a $1.4 trillion industry globally. It employs more than 300,000 people in the U.S. Moreover, it is experiencing explosive growth both domestically and abroad. Experts all agree that this will continue. Many fashion and apparel companies are experiencing double-digit annual growth while also being afflicted by a large increase in law suits over intellectual property disputes and other matters.

In addition, apparel manufacturers who offshored plants to China and other labor cost advantage Asian nations in the 1980s-2000s are bringing many of them back home as labor costs narrow and the domestic advantages enjoyed by U.S. manufacturers—a huge middle-class market, efficient transportation networks, the growing “Made in America” movement—become more apparent to them.

These factors, along with highly disruptive technological innovations (see below) have contributed to the emergence and growth of fashion law as a distinct practice area.

Fashion Law Defined

A Brief History

Fashion law dates back 2,600+ years to the first sumptuary laws restricting what women could wear in public. Trade restrictions soon followed, supplemented in more recent times by intellectual property laws addressing fashion design components. It also encompasses labor law, going back a century-plus to the era when young women and children sat at sewing machines in New York City’s garment district and were exploited and abused by employers.

However, the notion of a distinct fashion law practice area really emerged only in the 21st century, first in Europe and now in the U.S.

The first fashion law course was offered in 2008 at Fordham Law School, followed two years later by Fordham’s establishment of the world’s first fashion law academic center, the Fashion Law Institute, under the sponsorship of Diane von Furstenberg and the Council of Fashion Designers of America. Since then, a number of other institutions around the world began offering courses or programs in fashion law, including: Cardozo Law School, New York Law School, and Loyola (Los Angeles) Law School. In recent years, Howard University Law School has sponsored a “Fashion Law Week.”

The New York City Bar Association established a Fashion Law Committee in 2011, and the New York County Lawyer’s Association has a Fashion Law Subcommittee. The Florida Bar also has a Fashion Law Committee. The Federal Bar Association now sponsors a Fashion Law Seminar.

Fashion Law Elements

  • Intellectual Property (IP) (trademarks, trade dress, trade secrets, copyrights, patents [design patents and utility patents], design piracy, counterfeiting, and fashion licensing)
  • Business and Commercial Matters (entrepreneurship, finance, contracts, mergers & acquisitions, labor and employment, celebrity endorsements and promotions, marketing and advertising, and retail leasing)
  • International Trade (global sourcing, import/export, customs, transborder business expansion, and brand protection)
  • Fashion Law Litigation. For an example of a typical fashion law dispute involving IP—in this case copyright law—see Star Athletica, L.L.C. v. Varsity Brands, Inc., Et Al., 580 U.S. ____ (2017).
  • Consumer Protection
  • Antitrust Law and Competition
  • Labor Law

As Fordham’s Fashion Law Institute puts it, “Fashion law embraces the legal substance of style, including all of the issues that may arise throughout the life of a garment, starting with the designer’s original idea and continuing all the way to the consumer’s closet.”

Technology’s Impact

The massive disruptions of the fashion industry caused by technology are vastly expanding fashion law practice. Fashion law is on the cusp of going in directions and to places where, like the voyages of Star Trek’s starship Enterprise, “no one has gone before.”

The advent and growth of additive manufacturing—3D printing—is the biggest disruption that the fashion industry has ever experienced, and is turning both the industry and fashion law inside out. With 3D-printed wearables entering the market, a whole host of new legal issues are emerging and affecting traditional fashion law practice areas. For example:

Labor and Employment Law. 3D printing will eliminate many traditional fashion manufacturing jobs while at the same time create entirely new ones, including:

  • Workers who take a design and prepare it for 3D printing;
  • People who transform metal or other raw materials into 3D printable textiles;
  • 3D printer supervisors and managers; and
  • Software designers who code clothing designs.
  • Decisions will have to be made regarding whether employees or independent contractors will fill these new roles. Expect an increase in industry labor and employment law lawsuits.

Intellectual Property. 3D printing makes it much easier to customize clothing so that apparel can be tailored with precision to exact body shapes and sizes. Questions such as the following then arise:

  • If a purchaser customizes a piece of clothing from a company’s website, who owns the design?
  • If a customer describes a design to a designer who then creates the software, who owns the design?
  • If customized clothing arrives and doesn’t fit, who is liable? The software designer, manufacturer, supplier, or end user? Is this false advertising? Who is responsible for what?
  • Can a customer obtain a refund for a customized product that will be difficult, if not impossible, to resell?

Piracy and Counterfeiting. If a customer buys a 3d-printed dress and then uses her home 3D printer to replicate it, has she then pirated or counterfeited the garment?

As you can see from the examples above, fashion technology opens up whole new legal vistas and opportunities.

Blowing Open Fashion Geography

The U.S. fashion industry has been heavily concentrated in New York City, with Los Angeles a close second and Miami a distant third. 3D printing could potentially “democratize”—geographically speaking—the industry. Entrepreneurial startups are emerging throughout the country as 3D printing expands, improves, and becomes less costly.

Overseas, the fashion industry and fashion law is still heavily concentrated in Paris and Milan, but the technology is also having a democratizing impact on the geography of the practice.

Practitioners

To date, most fashion law practices can be found in fashion and apparel companies.

Law firms first became involved in fashion law under the umbrella of their entertainment practices. Not anymore. Today, fashion law is rapidly becoming a practice area in its own right.

A growing number of large law firms have developed discrete fashion law practices or subspecialties. Increasingly, a number of “boutique” firms are also beginning to focus on this practice area. As the industry expands, there are also opportunities for sole practitioners who wish to concentrate on, or add, fashion law to their portfolios.

In addition, industry trade associations are in good shape financially and increasingly hiring attorneys for a variety of association jobs in legal and JD Advantage arenas.

Coming Up the Fashion Law Learning Curve

Fordham Law School Fashion Law Institute. Fordham’s Fashion Law Institute offers a “Bootcamp” every summer in New York City and San Francisco (the latter jointly sponsored by Levi Strauss). This intensive program is open to law students and practitioners and emphasizes current business and legal issues involving the global fashion industry.

The Bootcamp explores diverse areas affecting the fashion industry, including IP, business and finance, international trade and government regulation, and consumer culture and civil rights. Within these categories, specific topics include the protection of fashion designs, counterfeiting, licensing agreements, fashion financing, garment district zoning, real estate, employment issues from designers to models, consumer protection, sustainability and green fashion, import/export regulations, sumptuary laws, and dress codes.

Program participants receive a Fashion Law Certificate at the end of the Bootcamp.

Loyola Law School Fashion Law Institute Summer Intensive Program. This program focuses on “constructing a brand narrative and all the legal elements necessary to carry that story forward.” The program is designed for students in the fashion industry, practicing lawyers and fashion industry professionals seeking to develop and deepen their understanding of the relationship between the law and the business of fashion. Portions of this 9-day program will be available remotely by live-stream and download.

A certificate of completion is awarded at the program’s graduation ceremony.

Resources

Tax “Reform” Means Legal Jobs

Richard Hermann
-
0

The last time Congress undertook a major overhaul of the tax laws, it spawned a surge in legal and law-related employment opportunities for attorneys. That was 31 years ago. When that bill became law, virtually every BigLaw and many smaller law firms bolstered their tax practices with new hires.

This time around, should Congress actually enact the aptly named Tax Cuts and Jobs Act,  you can bank on it that history will repeat itself. This phenomenon has occurred every single time a major tax bill has become law.

The 429-page behemoth of a bill, at this writing, passed the U.S. House of Representatives and has been sent to the Senate floor by the Senate Finance Committee, is, like all tax bills, ridiculously complex. Add in the bevy of implementing and explanatory issuances to come out of the Treasury Department and Internal Revenue Service if this bill becomes law. The dense, ponderous (and traditionally hastily and badly written) pages of documentation that lawyers will be called upon to interpret and clarify for their clients will number in the thousands.

Moreover, this omnibus bill’s wide range encompasses a great many changes to the way in which individuals, businesses, and nonprofits* will be taxed. Virtually every U.S. entity and citizen will be affected in some way.

Despite a lot of bombast by members of Congress and the President to the contrary, this bill by no means simplifies the tax code. On the contrary, it does what all prior tax legislation has done—it complicates it. That is invariably good news for attorneys.

It will take years for any tax overhaul to be incorporated into the daily doings of affected parties, so the host of new job and business opportunities created by it will also include a decent dose of job security.

*While nonprofits generally are not subject to taxation, enough exceptions have been carved out that some even have tax departments (most still rely heavily on outside counsel for tax matters and advice). The current bill under consideration significantly changes the way higher education institutions are taxed, primarily by subjecting certain activities to taxation for the first time. 

Note: Most large companies, e.g., the Fortune 500 and large private corporations, have tax departments populated by attorneys and accountants that are separate and apart from their in-house counsel offices.

How to Develop a Competitive Edge

Richard Hermann
-
0

Having seen and reviewed thousands of law student resumes, I am always struck by how uniform and “cookie-cutter” they are: the same formats, the same length (almost always limited to one page), the same order of presentation; the same boring language, and the same conventional paths. The lack of imagination these indicate is across-the-board and completely counter to what wins candidates a job interview, i.e., distinguishing yourself in some way.

The contemporary world offers countless ways to develop a unique value proposition, one that enables an applicant to emphasize differences, uniqueness; something that will make a prospective employer pause before dispensing with your resume and deep-sixing it in the round file. Manifesting a competitive edge is what makes you memorable—in a good way—when it comes time to decide whom to invite to the office for a job interview.

Here are three things (there are many others) you can do to gain such an edge:

Develop knowledge of the Foreign Corrupt Practices Act (FCPA) and supplement that with knowledge of the new anti-bribery laws of major trading nations such as India and China.

The FCPA criminalizes promises, offers, or making bribes, directly or indirectly, to a foreign official to retain business or to secure an improper business advantage. The law also requires publicly traded companies (on U.S. stock exchanges) to maintain accurate books and records, and to use an adequate system of internal financial and accounting controls.

The number of FCPA cases are skyrocketing and creating numerous new opportunities for attorneys, particularly those interested in litigation. This is a specialized area that few lawyers know much about. However, the globalization of business and the surge in the number of multinational corporations and the competitive environment in which they must operate means additional FCPA compliance, enforcement, and alleged violations. The risks associated with this pose a huge and growing challenge for U.S. companies seeking to do business abroad.

Combine this with new commitments by India and China to go after corruption and you also add to the mix a huge increase in enforcement actions by Indian and Chinese authorities.

Supplement your law degree with a certificate or comparable credential. There are more than 400 such programs that are legal or law-related that, combined with a JD, can greatly enhance your competitive edge when it comes to job hunting or business development. Many are online programs that can be accessed and listened to or viewed asynchronously. Moreover, these programs are for the most part reasonably priced and not terribly time-consuming. They look great on a resume. They show initiative, forethought, and energy.

Become conversant with new and emerging technologies that have vast legal implications. Robotics, artificial intelligence, self-driving vehicles, unmanned aircraft, digital assets, data protection, the Internet of Things, and blockchain are only a few of the emerging technologies that have broad implications for society, daily life, and the law. You do not have to become an expert in the technology; only acquainted enough to be able to speak intelligently about it and to understand its legal implications.

Do any one of these three things and you will find that you have a value proposition that distinguishes you from the crowd and makes you attractive to prospective employers.

The Practice Area Analysis Template in Action

Richard Hermann
-
0

In my last posting about this data-driven template I developed in order to chart practice area trends, I said I would post an example of how this works with respect to an actual practice area. I have selected Financial Services, one of the most dynamic and diversified practice areas to emerge in the 21st century.

Supply and Demand. Does the demand for talent exceed the supply of qualified individuals? Yes. Financial services is a wide-ranging and ever-expanding field. In the aggregate (i.e., mainstream law and JD Advantage functions), demand for financial services professionals far exceeds supply.

Number of Job Opportunities. Does the practice area offer a large number of job opportunities relative to other practice options? Yes. Financial services is immense. Depending on the definition, it constitutes around 20 percent of U.S. Gross Domestic Product (GDP), or one-fifth of the economy. Over time, its percentage share of GDP has steadily increased.

The financial services industry today employs more than 6 million people, including more than 100,000 attorneys. According to the U.S. Department of Labor, 920,700 people were employed just in the securities and investment advisory sub-sector at the end of 2015 (the last full year for which statistics are available at this writing). Moreover, financial services companies engage thousands of outside counsel law firms. In addition, several thousand attorneys work for government financial regulatory agencies, self-regulatory organizations (such as the Financial Industry Regulatory Authority [FINRA],), standard-setting entities (such as the National Association of Insurance and Financial Advisors), and international organizations that hire American lawyers (such as the Bank for International Settlements).

JD Advantage Job Opportunities. How many different job titles? Financial services encompasses more than 60 JD-Advantage job titles in addition to “attorney.” Demand can vary considerably depending on the specific job title. For example, compliance, risk management, international trade specialist, mergers & acquisition specialist, and public finance consultant positions are in great demand; consumer response specialist and loan specialist jobs less so. Is the number of JD Advantage job titles increasing? New law-related job titles are emerging every year; the most recent ones include those associated with the rise of financial technology firms, the sudden emergence of “blockchain” business models, increasing concerns about elder financial abuse, and the literal industry-wide panic about data protection.

Specialization. Is the field becoming specialized? Few practice areas can claim to be more specialized than financial services. Major sub-sectors include: banking, securities, insurance, asset management, and fintech.

Sustainability. Does the practice area have staying power? Yes. As long as money counts, there will be a demand for financial services professionals. Moreover, financial services is in constant flux, buffeted by continuous congressional churn, state legislative tweaking, international organization pronouncements, a virtual tsunami of court and administrative decisions, rules, legal opinions, and enforcement actions by the many regulatory and administrative agencies that own a piece of the financial services pie, not to mention foreign country regulations that impact U.S. banks and other financial institutions.

Anytime you run across a practice area where change is a constant, that is populated by multiple players, and is marked by intense competition, that is very good news for attorneys. These characteristics keep demand high in addition to offering interesting work that is intellectually challenging and ongoing.

An Upward Curve. Is the practice area a growth industry? Yes. The power of money to stimulate creativity is perpetual. The securities subsector of the industry, for example, shows great potential for employment growth, with increases approaching 10 percent a year.

Geographic Scope. Are jobs available nationwide, or at least in a large number of geographic locations? Yes. Financial services positions for lawyers are literally everywhere. For example, even in the small, rural community (population: 10,000) that was the primary focus of my book, Practicing Law in Small-Town America (American Bar Association, 2012), the small community bank employed an in-house counsel plus one full-time and one part-time compliance officer, both with law degrees.

In addition, financial services is a global industry. It has been a globalized market longer than almost any other industry. U.S. financial firms have a large body of experience from which to draw when it comes to competing and remaining profitable in a global arena. They are far ahead of other industry sectors with respect to this. In 2015, the U.S. exported $119.6 billion in financial services and insurance and had a $46.67 billion surplus in financial services and insurance trade (excluding re-insurance, financial services enjoyed a surplus of $88.4 billion). These trade surpluses are in sharp contrast to the overall U.S. trade imbalance, which has been mired in negative territory for many years.

Affinity Groups. Are there multiple legal and law-related membership organizations? There are more than 50 financial services trade and professional associations that count lawyers among their members. Is the number of such organizations growing? Yes. As new financial products and cutting-edge issues emerge, new associations are not far behind. Example: FinTech has recently spawned a host of new affinity groups.

Relative Ease of Entry. Can the learning curve be ascended by a novice attorney? Yes, depending on the specific job. Trust officers and pension law specialists, for example, are often open to entry-level attorneys. Is affordable supplemental education or training available? Yes. Low-cost, often online, asynchronous certificate and comparable programs are available for many financial services positions. Many of these are sufficiently non-invasive In terms of time and money so that they can be earned at the same time as a JD.

Ideally, It Should Be New or Different. Does the practice area allow opportunities for practitioners to be among those who are “first-past-the-post?” Yes, depending on the subsector. While financial services law is by no means a new practice area, many facets of it lend themselves to cutting–edge opportunities where the learning curve is so new and fast-changing that everyone, experienced attorneys and novices alike, are ascending it at the same time.

Moreover, every new regulation—and they are arriving in bunches—prompts regulated entities to devise creative ways around it. See, e.g., the securitization devices, such as Collateralized Debt Obligations, Credit Default Swaps, etc—that contributed so mightily to the Great Recession. In addition, there are always new technologies that generate new issues that have to be considered. Example: Probate, estate, trust, and financial planning professionals are now in the early stages of incorporating the management and protection of digital assets into their practices.

Distinctive Value Proposition/Competitive Advantage. Is practice area knowledge able to provide elements of a unique selling proposition for a future job campaign? Yes. Knowledge of the financial services industry and its specialized sectors are salable propositions across multiple economic sectors both within and outside of financial services. Note. In our volatile economy, it is critically important that your job due diligence always include consideration of where you can go next.

Compensation. Does this practice area allow student debt repayment obligations to be met? Yes, depending on the specific job title. Note. At this writing, President Trump’s Fiscal Year 2018 budget proposes eliminating the major student loan forgiveness program designed to help government and nonprofit employees, including lawyers, with their student debt. It appears that the program would only terminate for new borrowers after July 2018. Attorneys who have already incurred education debt would remain unaffected. The Department of Education’s Public Service Loan Forgiveness program (PSLF), excuses borrowers’ loan balances after they work for either government or a nonprofit for 10 years. The program is quite popular with Congress (with the exception of Republican deficit hawks). In addition to terminating PSLF, Trump’s budget proposal would end subsidized loans for low-income students and make students pay more of their earnings each year under a revised income-based repayment plan. It will be up to Congress as to how much of this will actually happen.

Threat Analysis. Is the practice potentially subject to substitution of a human lawyer by a disruptive technology such as artificial intelligence (AI)…or something else? Yes, again depending on the specific job. As a rough rule of thumb, positions that are “number-heavy” or ministerial in nature, such as trust management, are most at risk of being taken over by AI. Financial planning is also an example of such a position.

Your due diligence about financial services jobs must also take deregulation into consideration. While many observers consider that financial services is under-regulated relative to other industries, Congress is moving ahead with pulling back on the Dodd-Frank Act which would, if achieved, lead to some deregulation. If this passes, it is likely that it could have some negative job impact in certain areas. The exact impact is hard to predict because sometimes deregulation has generated as many job opportunities as regulation and re-regulation. Examples include telecommunications and airlines.

You should also become knowledgeable about how “FinTech,” the merging of financial services with technology, might adversely affect traditional financial services providers. Fintech is a disruptive phenomenon that could put slow-to-react old-line firms in existential jeopardy.

If you aspire to a property and casualty insurance job, you must also factor in the potential impact of self-driving vehicles, which are predicted to dramatically reduce the number of roadway accidents, meaning that claims job occupied by lawyers as well as “captive” insurance law firms at the local level could face an existential threat.

If so, how soon could this happen?

AI. AI is already making inroads in certain financial services sub-sectors, but at varying rates depending on employer size, location, and technological enthusiasm.

Deregulation. The Trump administration has already displayed its deregulation colors by rescinding many of President Obama’s executive orders. The next steps in this process require congressional approval and that has, to date, proven to be very difficult to achieve.  Deregulation is likely to hit harder in major financial centers (such as New York) than elsewhere.

Fintech. The merging of financial services and technology is well under way and will continue to expand and accelerate.

Autonomous vehicles. Self-driving cars and trucks are on the cusp of viability. An increasing number of states are authorizing the more than 60 companies developing this technology to test it on their roadways.

Conclusion

Financial services passes the hot practice area test with flying colors. It easily satisfies almost all of the Practice Area Analysis Template criteria. However, the threats to certain financial services sectors are very real and must be part of every attorney’s due diligence.

 

Research Compliance Takes Off

Richard Hermann
-
0

A little-known area of compliance is becoming a very big deal. A massive amount of money flows into research every year. This is true even in the Era of Trump. The U.S. government awards research grants and contracts worth more than $60 billion a year, primarily to universities. Corporations in the aggregate spend far more on basic, divided between in-house and outside contractors and grantees.

Serious money doled out for research requires monitoring. Consequently, a whole new field of research compliance has emerged and evolved around this immense expenditure. Like so many compliance subspecialties, research compliance too is now trending toward specialization. Specialty areas include:

  • Research Misconduct
  • Informed Consent
  • Clinical Trials (Human Subject Safety)
  • Laboratory Animal Welfare
  • Data Integrity of Sensitive Health Information
  • Management of Controlled Substances Related to Research
  • Commercialization of Federally-Funded Research

The temptations to divert research money to other pursuits (several years ago a principal researcher at a major university used several hundred thousand dollars of federal grant money for solid gold home bathroom fixtures) and to fudge results (remember “cold fusion”?) are huge. The response from grantors and contracting parties has been slow but steady.

The area most prone to potential abuse is research misconduct, defined as fabrication, falsification and plagiarism (but not including honest error or differences of opinion).

Research compliance is typically a multi-disciplinary function that includes attorneys.

One of the biggest impetuses behind the proliferation of research compliance hiring has been the U.S. Department of Health and Human Services policy that requires every institution that receives Public Health Service (PHS) funding to have written policies and procedures addressing allegations of research misconduct. This is a big deal because the PHS is much more than a bunch of physicians and nurses. It consists of the following offices that award tens of billions of dollars in grant and contract money every year:

  • Office of Public Health and Science
  • National Institutes of Health.
  • The Centers for Disease Control and Prevention
  • The Food and Drug Administration (FDA)*
  • The Substance Abuse and Mental Health Services Administration
  • The Health Resources and Services Administration
  • The Agency for Healthcare Research and Quality.
  • The Agency for Toxic Substances and Disease Registry
  • The Indian Health Service

*FDA does not fall under PHS for research integrity purposes. Instead, FDA handles such matters through its Office of Scientific Integrity

Other selected major employers of research compliance professionals include:

U.S. Government

Universities

Research Hospitals

Boutique Law Firms

Note. I have omitted corporations from this selected list is because the bulk of the research they fund is proprietary and often (surprise, surprise) results in endorsement of their products. Consequently, corporate research integrity offices are often “paper tigers.”

For More Information

1...456...9Page 5 of 9
© Newspaper WordPress Theme by TagDiv