Marchant Publishes Paper and Study on Genomic Malpractice

Faculty Director Gary Marchant published a groundbreaking paper and empirical study on genomic malpractice litigation. Genomic Malpractice: An Emerging Tide or Gentle Ripple? – co-authored with Rachel A. Lindor, a physician and researcher at the Mayo Clinic – was published in the latest issue of Food and Drug Law Journal.

Genomic Malpractice includes the first ever comprehensive study of genomic malpractice litigation. Marchant and Lindor pored over last 40 years of such cases for important insights. 

[T]he frequency of such cases has risen modestly, but still remains at a fairly low level with 12 or fewer reported cases being closed per year. A total of 202 reported cases were identified and analyzed. Even more perplexing, the cases that have been litigated demonstrate a relatively high rate of success for plaintiffs; moreover, the average payout in such cases is an order of magnitude higher than traditional medical malpractice cases. The study concludes by assessing the reasons behind the relatively low rate of litigation, which is attributed primarily to the slower than expected uptake of genomic medicine by health care providers and the reluctance of plaintiffs’ lawyers to take such complex and scientifically-intense cases.

Marchant and Lindor also identify ten “red flags” that may signal liability risk for health care providers practicing genomic medicine. Identifying such risks will be increasingly important as genomics become a larger part of medical practice.

The National Human Genome Research Institute’s Ethical, Legal and Social Implications Research Program provided funding for this project. The paper has been published as open access.

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Legislative and Policy Perspectives on Blockchain Technology

LSI and the ASU Law Blockchain Interest Group are putting on a Blockchain Speaker Series this spring at the Sandra Day O’Connor College of Law. The second of four speaker events, Blockchain and Government Policy, will be held on Wednesday, February 21.

This event will feature State and Federal legislators, as well as policy experts, who are working on regulation affecting blockchain applications and businesses. Attendees will learn about the present and future of governing this emerging technology.

Speakers:

  • Congressman David Schweikert (Congressional Blockchain Caucus)
  • State Representative Jeff Weninger (Sponsor of Arizona’s Smart Contracts Law)
  • Chief Counsel Paul Watkins (Civil Litigation, Arizona Attorney General’s Office)

Each event in LSI’s Blockchain Speaker Series is held at the Beus Center for Law and Society from 12:15 to 1:15pm. Lunch will be provided.

Registration is FREE. Space is limited. Register here to attend!

CLE is available on a “Give What You Want” basis.

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ABA Approves New Privacy Law Specialization

The American Bar Association (ABA) recently approved the first program to certify attorneys in Privacy Law. Attorneys who gain this new certification will be able to present and market themselves and Privacy Law Specialists.

The Privacy Law Specialist certification program approved by the ABA is a product of the International Association of Privacy Professionals (IAPP). To qualify attorneys must hold two non-specialist privacy certifications from IAPP, pass a professional responsibility in privacy law exam, show “substantial involvement” in the practice area, have completed at least 36 hours of privacy law CLE, and provide references.

Privacy law is set to be an important field of legal practice. With high-profile data breaches, like the Equifax breach (which seems to only get worse), the public’s mind is on privacy. Leading the way may be the European Union, which is set to implement the new General Data Protection Regulation (GDPR) in just under 100 days. Law360 called Data Privacy and Cybersecurity one of the four hottest practice areas for 2018.

The Center for Law, Science & Innovation offers a Certificate in Law, Science & Technology with a focus in Data, Privacy, and Security. Students interested in that certificate will study privacy law in the context of big data, health technologies, cyberspace, and other emerging technologies.

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LSI’s New Interest Group on AI and the Law

LSI is launching an Artificial Intelligence (AI) and Law Interest Group. This group will explore research projects, conference presentations, papers, and activities relating to the use of AI in the practice of law, and the role of law in governing AI technology.

The AI and Law Interest Group, headed by Faculty Director Gary Marchant, is open to all law students, faculty, and community members. Marchant recently published an article on this topic in The SciTech Lawyer titled Artificial Intelligence and the Future of Legal Practice.

If interested in joining the group, contact Gary Marchant (Gary.Marchant@asu.edu).

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Coffee Challenge: Winter Olympics Edition

During the semester we feature a technology with legal, social, and ethical implications and ask: What’s your answer? One $25 gift card to City Central Coffee, located on the 6th floor of the Beus Center for Law and Society, will be awarded based on the thoughtful comments below. Deadline to be eligible for this month’s gift card is March 2, 2018

It’s that time of year. The air is cold, snow is falling… well, not in Phoenix, but somewhere. Like PyeongChang, South Korea – home of the 2018 Winter Olympics!

For some, these games are already tainted by scandal. The International Olympic Committee is refusing to allow nearly 40 Russian athletes to compete after an investigation into an extensive, state-backed doping program.

But new kind of doping may be on the horizon: Gene Doping. This is the ability to enhance athletic performance through the use of gene editing technologies, like CRISPR-Cas9. The World Anti-Doping Agency has already promised to ban all gene doping in sports starting this year. It’s possible that in the future athletes will have to submit their genome for testing in order to compete.

Should gene doping be banned? If so, how best can governing bodies regulate the use gene editing technology in sports? What are the legal implications of demanding athletes submit their genomes for testing? What other considerations are there?

These questions and more are being asked by Faculty Fellows Diana Bowman and Andrew Maynard. They were recently awarded funding from ASU’s Global Sports Institute to study gene doping and its potential impact on the future of sports.

What do you think? Put your answer in the comments for a chance to win. Be thorough and cite your sources. We’re excited to read your thoughts

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Blockchain on the Cover of Arizona Attorney Magazine

LSI Faculty Director Gary MarchantBryce Suzuki (Bryan Cave) and Todd Taylor (ASU Blockchain Research Lab) published the featured article on blockchain and the practice of law in this month’s Arizona Attorney Magazine.

The article, Blockchain: How It Will Change Your Practice of Law, explains the ins and outs of blockchain, cryptocurrencies, smart contracts, and other applications for this emerging technology. The article also discusses the nascent regulatory environment around blockchain and whether certain applications could replace some areas of legal practice entirely.

Suzuki and Taylor are part of the ASU Law Blockchain Interest Group, headed by Marchant, which brings together law students, attorneys, entrepreneurs, and community leaders to build and share expertise in blockchain technology and the rapidly changing law and policy environment.

LSI is hosting the Blockchain Speaker Series this spring. The next event, on Wednesday, February 21, features legislators and policy experts discussing the present and future of blockchain regulation.

Speakers will include:

  • Congressman David Schweikert (Congressional Blockchain Caucus)
  • State Representative Jeff Weninger (Sponsor of Arizona’s Smart Contracts Law)
  • Chief Counsel Paul Watkins (Civil Litigation, Arizona Attorney General’s Office)

Registration for this event is FREE. (CLE available). Tickets will sell out! RSVP today.

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LSI Scholar Profile: Jordan A. Brunner

The Center is home to an incredible faculty and host to the top minds at the intersection of law, science, and technology. But we also attract the brightest student scholars around; you should meet them.

Jordan Alexander Ross Brunner
Class of 2018

Hometown: Mesa, Arizona

Education: B.S. Political Science, Arizona State University

Jordan is a third-year law student with a concentration in national security law at the Sandra Day O’Connor College of Law. He is the Senior Executive Editor of Jurimetrics: The Journal of Law, Science and Technology and was previously the president of the Law and Science Student Association. He is a contributor to Lawfare, a prominent website published in cooperation with the Brookings Institution devoted to serious discussion of issues at the intersection of national security and law. He has also contributed excellent analysis on the Internet of Things and surveillance in the connected age for this blog.

Jordan recently published Comment in Jurimetrics on President Obama’s declaration of a cybersecurity national emergency – The (Cyber) New Normal: Dissecting President Obama’s Cyber National Emergency. He was intrigued by the Obama administration’s response to cyber threats, from Stuxnet and the theft of F-35 fighter jet designs to catfishing and election interference:

The way in which the Obama administration handled these problems, both on the national and the international level, was of intense interest to me. What was most ironic to me was that, given Obama’s rhetoric of advancing the rule of law and being precise in its use, the language use in the executive order he wrote to declare a national emergency surrounding cyberspace was (1) overbroad, and (2) actually created a situation that the laws it relied on was designed to prevent – namely, the creation of a permanent national emergency. And yet, even given the potentially draconian effects of the EO, it is understandable that it would be written that way – after all, when you are dealing with terrorists and criminals, it is often better to be overbroad than underbroad. And ultimately, the fault lies with Congress for granting the president such broad power in the first place. My comment, I hope, attempts to draw attention to all of these trends.

Before law school, Jordan was a Research Fellow with the New America Foundation/ASU Center for the Future of War, where he researched cybersecurity, cyber war, and cyber conflict alongside Shane Harris, author of @War: The Rise of the Military-Internet Complex. He graduated summa cum laude from Arizona State University with a B.S. in Political Science. Jordan chose to go to law school because he was interested in how the law impacted technology and national security, especially when it came to foreign affairs.

3 Fun Facts:

  • Youngest in his class (22 years old)
  • First encountered ASU through an elementary school violin program
  • Writes poetry for fun
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Michael Arkfeld is Teaching the Future of the Practice of Law

Michael Arkfeld is a teacher at heart. He has been at the head of the ASU-Arkfeld eDiscovery and Digital Evidence Conference since its inception, continues to pen the authoritative treatise Arkfeld on Electronic Discovery and Evidence, and regularly speaks across the county. He is proud of educating legal professionals and pushing the dialogue forward in this complex area of practice.

He was inspired to enter the field and share his expertise in ediscovery and digital evidence when he saw how few legal practitioners incorporated it in their practice.

What I discovered was that most practitioners had no idea what electronic evidence was about.

This is the future of the practice of law. – Michael Arkfeld

Most data generated today is never produced in a physical form. It is never written down or printed out. Today, digital evidence IS evidence. Understanding how to ask for, collect, manage, analyze, and present digital evidence in an admissible form is hugely important. 

“This area can be so complex,” said Arkfeld. For example, it can be difficult for practitioners get their heads around the importance of metadata – what it can tell you about a piece of evidence and how to request and use it.

Arkfeld notes that many professional organizations have increasingly emphasized legal technology, e-discovery, and data analytics. However, none have really adopted an aggressive approach to education in the area. Which is a shame, because legal professionals who embrace this technology as part of their practice and business are set to outpace their peers. “They already have,” said Arkfeld.

The 7th Annual ASU-Arkfeld eDiscovery and Digital Evidence Conference is the place for an aggressive, practical education for legal practitioners. Arkfeld says this conference is unique for its “focus on law and technology in an academic and interactive environment” with a premium on quality legal scholarship. Attendees will have the opportunity to hear from and rub elbows with the top legal minds in the world.

This year features an array of top legal minds, including keynote speakers:

Hon. Andrew J. Peck
Chief Magistrate Judge, U.S. District Court for the Southern District of New York

Joe Gervais
Principal Cybersecurity Researcher and Red Team member of Symantec
Gary Marchant
Faculty Director, Center for Law, Science & Technology

“The topics covered at the conference are both practical and on the cutting edge,” said Arkfeld. For example, this year will feature sessions on data analytics – the next frontier of digital evidence in the practice of law.

The conference in Phoenix, Arizona (great for sunshine and a round of golf) on March 6-8, 2018 in the beautiful Beus Center for Law and Society – home of the Sandra Day O’Connor College of Law. Registration for the conference is open now. 

Register now for discounted Early Bird prices (available through February 9). Extended through February 12!

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Prof. Grey: New Evidence on Subconcussive Injury and CTE

Professor and Faculty Fellow Betsy Grey was recently interviewed by Bloomberg Law about the potential impact of a new study on injuries causing CTE (chronic traumatic encephalopathy). The study, out of Boston University’s CTE Center, identified evidence that even relatively minor repetitive hits to the head may lead to degenerative brain disorders, including CTE.

This study may change how we see and manage traumatic impacts in sports. “[This] will reconceive what we mean by injury and accordingly, duty, in the sports context,” said Grey, speaking to Bloomberg Law. If confirmed, this study could mean that teams, players, parents, and the courts have to be concerned about all hits to the head, not just those strong enough to leave a player concussed.

If subconcussive injuries are the true problem, then we will also need to rethink what we mean by ‘harm,’ which may include claims for latent injuries, the fear of developing CTE, and medical monitoring. 
– Betsy Grey

Read more about the study and Grey’s thoughts on safety, the future of youth sports, and league liability: CTE Study Blows Whistle on Concussions, Redefines Risks.

Grey has long worked at the intersection of neuroscience, CTE, and the law. She and the Center for Law, Science & Innovation (LSI) hosted a conference on safeguarding brains and the concussion epidemic in sports back in 2015. She has commented on the potential use of CTE biomarkers in cases like the late NFL star and convicted murderer Aaron Hernandez, who was shown to have severe CTE following his suicide. And Grey and LSI recently hosted a conference on the Aging Brain, which focused on medical and legal issues around aging and degenerative brain diseases.

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Faculty Fellows Join Nature Nanotechnology Advisory Panel

Nature Nanotechnology, the preeminent journal on nanoscience and nanotechnology, has introduced an advisory panel of experts to guide the journal’s coverage at the intersection of nanotechnology and society. Faculty Fellows Andrew Maynard and Diana Bowman have been selected to be among seven or so experts from around the world to serve on this advisory panel.

Scientific and technological progress are only part of the nanotechnology’s potential impact. The journal is interested in how ongoing research and new discoveries can be structured and covered to address challenges facing modern society. The advisory panel will aid journal editors in answering tough questions in service of that goal.

For example, how does the public perceive [nano]technology? Have the material benefits and risks been considered fully? Will the deployment of [nano]technology be environmentally and economically sustainable? Could [nano]technology create more harm than benefits to society, for example in terms of inequalities? Even more fundamentally, is the research itself conducted in a responsible and sustainable way?

Maynard and Bowman have worked on such questions before. They recently published an analysis of international efforts at regulating nanomaterials in cosmetics. Bowman also co-teaches a course on nanotechnology with Sandra Day O’Connor College of Law Dean Douglas Sylvester.

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