December 2017: Darren Miller (’07)

Darren Miller, a partner at Nixon Peabody, was not the traditional law student. Yet, his path from classroom to conference room prepared him to be a successful and well-versed attorney.

Born and raised in Scotland, Darren suffered a tragedy at a young age when he lost his father in the Piper Alpha Oil Platform Disaster, and through the ensuing Public Inquiry, was introduced to the law. Family and friends alike told him he’d make a great lawyer someday, and Darren was sure he’d prove them right.

Darren Miller
Partner at Nixon Peabody

Darren first came to the United States at the age of 16 through an exchange student program, spending his senior year of high school in upstate New York, where he met his eventual wife, Aedria. Deciding to stay in the U.S. for good, he enrolled at Binghamton University, where he majored in political science and gained valuable work experience in the legal department of a life insurance company.

Upon graduation in 2004, Darren prepared for his legal education at Syracuse University College of Law, where he would join Syracuse Law Review for Volumes 56 and 57. His Note, inspired by his journey toward American citizenship, was entitled “Terminating the ‘Just Not American Enough’ Idea: Saying ‘Hasta La Vista’ to the Natural-Born-Citizen Requirement of Presidential Eligibility.” Darren’s Note was selected as the number one Note in 2006 and was published in Volume 57.

During his 3L year, Darren served as an Associate Notes Editor for Law Review, helping 2Ls with their Notes and research processes. Darren credits this experience with helping him to develop an unbridled attention to detail, to realize the importance of networking, and to appreciate how valuable research and writing are in the legal field.

“Attention to detail is crucial as a lawyer,” Darren said. “The placement of a comma or the wording you choose can mean the difference between a positive or negative result for your clients.”

While in law school, Darren tapped into a variety of his legal interests, but he always kept an open mind. He knew he loved the law, but he wasn’t quite sure what area of law would be the best fit, with the exception of transactional versus litigation. That, he jokes, he came to decide between very quickly.

“In my first year, we had oral arguments in our Legal Research and Writing classes,” he said. “I was paired against one of my good friends, and she was first in the class at the time. She bested my argument on all counts and handed me a lesson that I wouldn’t forget! I knew, at that moment, I was never going to be one of the courtroom lawyers I saw on television!”

That valuable lesson steered Darren to accept internships and experiences that would ultimately shape his career path and lead him to where he is today.

His first summer, he worked with a small firm in Binghamton, New York, where he dabbled in criminal law and gained plenty of writing experience. The second summer, he found himself at Nixon Peabody in Rochester, New York. It was there that Darren began what has become an exciting and fulfilling career, receiving a job offer from Nixon Peabody at the close of the summer.

After accepting the offer, it became a question of where to place Darren in the firm, as the summer program utilized a rotating-department system.

“They said, ‘What do you think about real estate?’ To be honest, I’d never really thought about it before!” Darren said. “That’s where I started, though, and I’ve really enjoyed building my career with a fantastic group of real estate lawyers in Nixon’s Rochester office and across the country. I didn’t begin to focus on construction law until I was a second- or third-year lawyer, when a couple of departures from the firm opened up an opportunity to learn a niche area of the law. I’ve been really fortunate to learn from a fantastic mentor who really invested a lot of time to teach me this field.”

Darren said that although his practice area choice may appear “happenstance,” a life of “happenstance” prepared him well for that moment—from being an exchange student, to meeting his wife and moving to the U.S. permanently, to taking the summer associate position at Nixon Peabody.

“I think the take home lesson is that being a lawyer always changes,” he said. “You have to be willing to learn something new, to modify your plan. Take the recent changes to the tax code as an example. Many of the changes proposed would have fundamentally changed the nature of tax practice for a number of lawyers at Nixon and elsewhere. Changing circumstances are all part of the job. That’s all a part of lawyering. Being able to pivot and adapt is a fundamental skill necessary for all lawyers.”

Through it all, however, Darren said that work ethic, building strong personal and professional networks, and being open to experiences that will help you grow are all great ways to propel your career forward.

“You don’t have to have a perfect plan,” he said. “I know, as lawyers, we’re all ‘Type A’ people who feel we need to have a path and a plan, but sometimes you don’t need to be so focused on that. The more important thing is whether you can adapt, go with the flow, and take a job that will give you experience to get you to the next level. You have to let yourself be free to explore options.”

Darren’s hard work and open mind have certainly provided him just that: experience that has helped him arrive at the next level. Now a partner (as of January 2017) in the very firm where he got his start—in addition to being named to the Legal 500 list, the Super Lawyers Magazine’s “Upstate New York Rising Stars” for four years, and one of The Daily Record’s “2014 Up & Coming Attorneys”—Darren’s career is an exciting one.

Beyond the recognitions, the new partner position, and the more than ten years in the business, Darren said he loves that a profession like the law also allows him to give back and be a part of something bigger than himself.

“I’ve been a part of a number of great projects as a real estate and construction attorney,” he said. “I help build breweries, museums, shops, and apartment buildings, all of which are important in their own right. But, I’ve also been able to work on some great projects that do so much good for people really in need.

“When I started ten years ago, for example, we started working with a service provider to build a safe space for domestic violence victims. There were a lot of twists and turns along the way, but finally, last year, the building was completed. It was a thrill to attend the grand opening of a building that is a tangible representation of my career to date and, more importantly, fills such an important need for the community it serves. I received a great deal of personal satisfaction from working on that project in particular.”

From ‘happenstance’ to ‘making it happen,’ Darren continues to shine in his field and excel in his craft. We’re certainly excited to see where he goes next!

 


This story was written by Legal Pulse Editor Samantha Pallini and is the sixth installment of Syracuse Law Review’s new monthly feature, “Alum of the Month.” Stay tuned for next month’s feature on another noteworthy Syracuse Law Review alumnus.


 

 

 

 

Medical Marijuana: A Budgeted Controversy

Written By Jason Adelstone

 

Short-term medical marijuana (MMJ) protections expire with every new federal budget agreement. Consequently, MMJ enforcement and federal protections are currently being debated in states nationwide and in Congress.

Background

Since 1996, states have been enacting statutes to protect the medical use of marijuana. Forty-six states, plus the District of Columbia, currently acknowledge a variety of medical benefits stemming from the use of cannabinoids.  Four states – Kansas, South Dakota, Nebraska, and Idaho – have no form of MMJ protections. Due to this lack of consistency, the United States is a patchwork of various state MMJ laws and protections.

At the federal level, the federal government has not officially endorsed or prohibited MMJ, and Congress has been able to sidestep this type of legislation by introducing budget restrictions. These restrictions prohibit the Justice Department (DOJ) from using funds to assail legal MMJ users and distributors in states where MMJ is legal. With the rapid proliferation of MMJ, however, Congress may soon have to address the conflicting state laws, as well as the fact that the majority of United States citizens approve of MMJ use. This is bolstered by an August 2017 Quinnipiac poll, wherein 94% of respondents (both Democrat and Republican) supported the use of MMJ for adults as prescribed by a doctor.

In consequence, experts and professionals nationwide are exploring their options moving forward. This article highlights three of the long-term solutions Congress can take immediately, without overhauling federal drug policy.

Red Tape

One solution is for Congress to remove the red tape and permit research on cannabis, in addition to permitting broad investigations and testing into the true effects of the cannabis plant. This can be done by either removing marijuana as a Schedule One drug or by regulating protections for states.

In mid-December, U.S. Senator Orrin Hatch (R-UT) argued that the complex application process required to research MMJ is leading to longer wait times for researchers. This, in turn, leads to greater suffering by patients. According to ProjectCBD.org, “Scientific and clinical research—much of it sponsored by the U.S. government—underscores [cannabidiol’s] potential as a treatment for a wide range of conditions, including arthritis, diabetes, alcoholism, MS, chronic pain, schizophrenia, PTSD, depression, antibiotic-resistant infections, epilepsy, and other neurological disorders.”

This year, MMJ supporters, including U.S. Senator Mike Lee (R-UT) and U.S. Senator Kristen Gillibrand (D-NY), re-introduced the “Compassionate Access, Research Expansion, and Respect States Act,” which “would amend federal law to allow states to set their own medical marijuana policies.” The bill also removes the federal prohibition on Department of Veterans Affairs’ doctors from recommending MMJ to veterans for the treatment of serious injuries and chronic conditions.

Opponents in Congress, and U.S. Attorney General Jefferson Sessions (USAG), believe that cannabis is a “danger” and that the DOJ should have no restrictions on how it pursues prosecuting the use and distribution of MMJ. Despite their concerns with the costs associated with overseeing the operations, the USAG and the Drug Enforcement Administration (DEA) have agreed to expand MMJ research.

The Rohrabacher-Blumenauer Amendment

A second option is for Congress to remove the Rohrabacher-Blumenauer Amendment (RBA), which has been included in every federal budget agreement since 2014. The RBA prevents the DOJ from using funds to target patients, providers, and businesses involved in the processes surrounding the implementation and execution of MMJ laws, so long as those parties act within the confines of their state’s MMJ laws.

In December of this year, there was a new bipartisan call to continue protections for MMJ states. Sixty-six members of Congress requested of their colleagues that the RBA be included in the current budget agreement, which will expire January 19th, 2018. However, since the long-term effects of marijuana are still unknown, the USAG is attempting to persuade Congress to remove the RBA, so as not to restrict the DOJ from drug prosecutions during what he has called a “historic drug epidemic.” Until more research is completed on the effects of MMJ, and the DOJ’s authority is restored, it is likely that the USAG will remain cautious regarding the proliferation of MMJ among the states.

Employee Protections

A third solution comes via the Controlled Substances Act (CSA) and the Americans with Disabilities Act (ADA). Courts are split on whether state MMJ laws protect employees from adverse treatment by their employer.

In states like Colorado, Washington, and California, courts have held that the employer is not required to accommodate an employee’s use of medical marijuana outside of work hours. Since these state statutes do not include specific protections for the employee, the courts have held that businesses can choose to either comply with the state law or the federal law when it comes to hiring and firing employees. In other states, such as Arizona and New York, specific protections are in place for employees, wherein employers must treat MMJ usage like any other prescription medication or disability accommodation (with some narrow exceptions).

In contrast, a Connecticut District Court held this year that the CSA was not meant to be an employment act; therefore, an employer may hire someone, knowing that the individual uses MMJ, and it will not constitute a violation of the CSA. Additionally, that court opined that the state can increase protections to persons with disabilities. These legal decisions have created many questions of employer liability that may eventually call for Congress to settle the dispute.

Conclusion

While annual budget prohibitions on the Justice Department help in the short run, MMJ regulation needs a long-term solution, so that states can confidently invest in MMJ’s future or abandon it all together for other alternatives.

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Sources Cited

Aleta Labak, 66 Congress members make plea to extend protection for medical marijuana states, The Cannabist (Nov. 29, 2017).

Ariz. Rev. Stat. Ann. §36-2813(b) (2010).

Barbuto v. Advantage Sales and Mktg., 78 N.E.3d 37 (Mass. 2017).

Callaghan v. Darlington Fabrics Corp., 2017 R.I. Super. LEXIS 88 (May 23, 2017).

Coats v. Dish Network, 350 P.3d 849 (Colo. Ct. App. 2013).

Gonzales v. Raich, 545 U.S. 1 (2005).

Jeremy Berke, Jeff Sessions says it would be ‘healthy’ to have ‘more competition’ among medical marijuana growers for research, Business Insider (Oct. 18, 2017).

Kirsten Gillibrand, Senators Reintroduce Bipartisan Medical Marijuana Bill (June 15, 2017).

KSL.com, Sen. Orrin Hatch Slams ‘Regulatory Acrobatics’ Needed for Cannabis Research (Dec. 19, 2017).

Melina Delik, How Jeff Sessions Plans to End Medical Marijuana Before The Year Is Over, Newsweek, (Nov. 24, 2017).

Mike DeBonis and Erica Werner, Senate passes stopgap spending bill, allowing Congress to avert partial government shutdown, The Washington Post (Dec. 21, 2017).

 Noffsinger v. SSC Niantic Opperating Co., 2017 U.S. Dist. LEXIS 124960, *10-21 (D. Conn. Aug. 8, 2017).

N.Y. Protections for the medical use of marihuana Law §3369(2) (2017).

 ProCon.org, (Sept. 14, 2017).

Richard Wolf and Trevor Hughes, Justices won’t har Nebraska, Oklahoma marijuana dispute with Colorado (March 21, 2016).

Swaw v. Safeway, Inc., 2015 U.S. Dist. LEXIS 159761 (W.D. Wash. Nov. 20, 2015).

Tim Marcin, What Jeff Sessions Has Said About Marijuana, Newsweek (March 19, 2017).

What is CBD?, ProjectCBD.org, (last visited Dec. 21, 2017).

Photo courtesy of CNN.

Net Neutrality Explained: What Does It Mean for the Consumer?

Written By Alex Avakian

 

The Federal Communications Commission (FCC) voted to repeal net neutrality laws on December 14th. By a 3-2 vote, the decision, as explained by Chairman Ajit Pai, will help consumers by promoting competition and creating an incentive to build networks in underserviced areas.

Background

In 2015, under the Obama administration, and former FCC Chairman Tom Wheeler, the FCC passed a regulation that classified broadband services, like the internet, as a utility under Title II of the Telecommunications Act. This allowed the FCC to have broad powers to regulate internet service providers (ISPs).

The Telecommunications Act

In 1934, under its Commerce Clause authority, Congress passed the Telecommunications Act (Act), establishing the FCC. The FCC’s purpose was to have authority over radio and other telecommunication networks. Its purpose, or policy rather, was to prevent discriminatory practices by communications companies and provide access to these networks at a reasonable price.

In 1996, the FCC expanded the scope of the Act to cover broadcast television and the internet.  One of the main goals of the Act was to promote more competition by preventing monopolies. The networks were controlled by the big companies. For smaller ones to provide services to their users, primarily in rural, underserviced areas, they had to use the networks of the bigger companies. The Act served to ensure that bigger companies would not limit access to smaller ones, but instead, would provide them a network at a reasonable cost.

The Act also recognized that the internet played a major role in the way individuals worked, lived, and learned. Title II of the Act found it a United States policy, in pertinent part, to promote unbridled user control of the internet and to prevent similar discriminatory practices by ISPs.

Why Is There A Push For Net Neutrality?

A push for net neutrality stems from how the consumer uses the internet. With more traffic towards streaming and social media sites, ISPs know what the consumer wants. Without net neutrality, ISPs have the power to either help these high traffic companies succeed to the detriment of others, or to raise prices on these companies. ISPs know that these companies will pay to use their services, and the consumer will absorb those costs to access sites.

What Has Net Neutrality Done?

Under net neutrality, ISPs have not been able to discriminate by blocking apps or websites they deem unfavorable or contrary to their visions. If the content of the application or website is lawful, the ISPs have had no authority to control them. Title II recognized this as a user right.

Similarly, the providers have not been able to slow the transmission of data based on the nature of the content, and they have not been able to offer companies faster bandwidth to the detriment of other companies. Essentially, net neutrality has mandated that ISPs like Comcast and AT&T cannot discriminate between websites and the content of those websites.

What Could Repealing Net Neutrality Mean?

Under President Trump’s administration, which strongly supports less governmental regulation, the FCC repealed net neutrality. According to FCC Chairman Ajit Pai, this is better for the consumer because it creates more competition among ISPs and forces ISPs to strengthen their business in underserviced areas.

However, repealing net neutrality could also affect how the consumer accesses the internet. Consider the application SlingTV (Sling). Sling allows a consumer to watch TV, live or recorded, on a mobile or handheld device. To access Sling, a consumer pays for a package of channels, which range from basic to premium. Basic could contain channels like ABC and ESPN, whereas premium packages could contain Food Network and Spike. This is very similar to how cable television operates. A consumer can pay for a basic package of channels, or the consumer can upgrade to premium packages consisting of HBO and Showtime.

Without net neutrality, ISPs are not prohibited from creating similar payment structures and website packages. Hypothetically, an ISP could create a ‘social media package’ consisting of Facebook and Twitter, a streaming package consisting of Netflix and Hulu, and so on and so forth. In order to access both Facebook and Hulu, the consumer would have to either buy two packages – social media and streaming – or pay for more for a premium package that includes both.

In addition to website package-style deals, consumers also face the potential handed-down-costs of bandwidth speeds. Hypothetically, bigger content companies could pay for more bandwidth speed, which would then slow down access to other websites, while passing off the cost of the upgrade to the consumer.

To illustrate this even further, if ISPs did create these package deals, then if a consumer only purchased the social media package, and then typed “Netflix” in the URL, the consumer could receive a message that says, “You need to upgrade your package to access this website.”

Contrary to these points, FCC Chairman Ajit Pai stated that these hypotheticals were not the case before net neutrality, and there is no indication that something like this will happen without net neutrality. Indeed, FCC Chairman Pai said the FCC wants to return to the regulating times of President Bill Clinton, as he believes that the regulations currently imposed by net neutrality and Title II have been “particularly serious for smaller Internet service providers. They don’t have the time, money, or lawyers to navigate a thicket of complex rules.”

“Returning to the legal framework that governed the Internet from President Clinton’s pronouncement in 1996 until 2015 is not going to destroy the Internet,” FCC Chairman Pai said in a statement. “It is not going to end the Internet as we know it. It is not going to kill democracy. It is not going to stifle free expression online. If stating these propositions alone doesn’t demonstrate their absurdity, our Internet experience before 2015, and our experience tomorrow, once this order passes, will prove them so.”

While it may be too early to consider this the dawn of a new internet, it is something that should be monitored to know what is changing and how it impacts the consumer, both legally and financially.

 

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Sources Cited:

Cecilia Kang, F.C.C. Repeals Net Neutrality Rules, N.Y. Times (Dec. 14, 2017).

47 U.S.C. §§ 151, 230–232 (2012).

Keith Collins, Why Net Neutrality Was Repealed and How It Affects You, N.Y. Times (Dec. 14, 2017).

David Goldman & Jose Pagliery, Net neutrality is here. What it means for you, CNN (June 13, 2015, 1:11 PM).

Rebecca R. Ruiz, F.C.C. Sets Net Neutrality Rules, N.Y. Times (Mar. 12, 2015).

FCC Repeals ‘Net Neutrality’ Rules For Internet Providers, NPR (Dec. 14, 2017).

Photo Courtesy of Phone2Action.

REVIEW: Masterpiece Cakeshop v. Colorado Civil Rights Commission

Compiled By Lacey Grummons

On Monday, December 5, 2017, the Supreme Court heard oral arguments in the highly anticipated case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Background

This case stems from a 2012 incident, wherein Charlie Craig and David Mullins sought out cake artist Jack Phillips to design a cake for their wedding. Mr. Phillips, the Masterpiece Cakeshop owner, refused to make them a wedding cake on the basis that their same-sex marriage was contrary to his sincerely held religious beliefs. Mr. Phillips’ refusal occurred before any discussion of designs or words that would be on the cake.

Consequently, the couple filed discrimination charges pursuant to Colorado’s Anti-Discrimination Act, and the Colorado Civil Rights Commission issued a cease-and-desist order to Masterpiece Cakeshop. The Colorado Court of Appeals upheld that order.

Mr. Phillips argues that Colorado’s Anti-Discrimination Act, as well as the cease-and-desist order, are a violation of his First Amendment freedoms of expression and religious exercise. It is Mr. Phillips’ stance that, by declining to design and bake a cake for the couple’s wedding, he was exercising his constitutional right to refrain from artistic expression.

In contrast, the Commission has been arguing that designing a cake is not a form of expressive speech. In addition, the Commission has argued that the act of baking a cake does not necessarily constitute participation in, or the condoning of, a wedding celebration for a same-sex couple.

Cakes for same-sex weddings are not the only type of cake that Mr. Phillips has refused to make, however. He also does not bake Halloween cakes, divorce cakes, or adult-themed cakes. Further, Mr. Phillips did not refuse to serve the couple altogether, as he offered them any other cake or pre-made baked good he had in the store.

Since the lower court’s ruling, Mr. Phillips has stopped making wedding cakes.

Mr. Phillips’ Oral Argument

Some of the layers the court has to consider when making this decision are what constitutes expressive speech, and who is considered an artist. Mr. Phillips argues that he is an artist who intends to speak through his custom-designed cakes. Consequently, when he bakes, he “is painting on a blank canvas. He is creating a painting on that canvas that expresses messages[,]” and it, therefore, should be protected under the First Amendment. Mr. Phillips likens his cake designs to that of the work of other artists, such as painters and sculptors.

In oral arguments, Justice Elena Kagan outlined what she calls the “three axes” of the case. The first axis inquires about the possibility of a bright line rule and what that would look like in the context of civil rights cases. The second axis involves what persons the ruling should apply to. Specifically, Justice Kagan asked Mr. Phillips’ counsel, “Why isn’t it about race? Why isn’t it about gender? Why isn’t it about people of different religions?”  The third axis revolves around why this case is merely focused on weddings, and why this case’s outcome should not also apply to other events, such as funerals, Bar Mitzvahs, First Communions, anniversaries, and birthdays.

With regard to the first axis – an inquiry of significant focus throughout oral arguments – some of the examples of artistic expression that the justices inquired about included architecture, hairstyles, and flower arrangements. Justice Kagan asked Mr. Phillips’ counsel whether a hairstylist or a make-up artist could rely on his or her religious beliefs as a basis for refusing to provide services for a same-sex wedding. His counsel responded in the negative, arguing that doing someone’s make-up is not speech.

Building upon Justice Kagan’s concerns, Justice Stephen Breyer acknowledged the importance of asking such questions as Kagan’s in the Court’s search for “some kind of distinction that will not undermine every civil rights law.” Justice Sonia Sotomayor did the same, turning her attention to concerns with the creation of a ruling that could lead to a slippery slope of discrimination and hardship for the LGBT community, in addition to opening doors for other protected class issues.

Specifically, Justice Sotomayor provided the hypothetical of a same-sex couple on a military base, in a predominantly-Christian town. “[I]t may come to pass where the [only] two cake bakers [in town] will claim the same abstention [as Phillips has claimed],” Justice Sotomayor said. “So how do we protect the military men and women who are of the same sex who want to get married in that town because that’s where all their friends are, because the base is there?” Mr. Phillips’ counsel distinguished the hypothetical from the case at hand, arguing that such a situation could satisfy heightened scrutiny because “interests in providing access to goods and services would be narrowly tailored.”

The Commission’s Oral Argument

While the justices viewed much of Mr. Phillips’ oral argument through the lens of Justice Kagan’s three axes, the justices analyzed the oral argument of the Commission through the lenses of tolerance, accommodation, and context.

As to context, Justice Samuel Alito asked counsel about the context of a cake’s creation. For example, the Commission argued that just as you would have to sell a “Happy Birthday” cake to a “member of the Jewish faith,” you would also have to sell a “Happy Birthday” cake to “an African-American couple.” Justice Alito responded by asking, if Mr. Phillips were to sell a “November 9th, The Best Day in History” cake to a wedding anniversary couple, would he also then be required to sell a “November 9th, The Best Day in History” cake to someone wishing to celebrate Kristallnacht, a night in 1938 when Nazis attacked Jewish persons and their property? The Commission distinguished this hypothetical from the case at hand.

Regarding accommodation, Justice Anthony Kennedy addressed how it seemed to him that “the state … has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” He questioned whether an issue of accommodation exists, as other bakeries were available to the couple.

Chief Justice John Roberts chimed in as well, asking if the results of this ruling would require, for example, Catholic Legal Services to provide legal services to a same-sex couple, despite sincerely held religious beliefs that do not support same-sex marriage. Colorado’s Solicitor General answered in the affirmative.

Moving Forward

A decision is expected from the Court in 2018, likely around the end of the Court’s term in June. Until then, the country will be engaged in vibrant debates in the court of public opinion.

 

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Sources Cited

Transcript of Oral Argument, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017) (No. 16-111)

Photo courtesy of MarthaStewart.com