This season on UnCommon Law, we’re exploring one of the most expansive Federal Trade Commission proposals of the last half century: a near-total nationwide ban on noncompete clauses. We’ll examine arguments for the ban, and talk to workers who’ve had their livelihoods crushed by oppressive covenants not to compete. We’ll look at arguments in favor of keeping noncompetes, and talk with business owners who say they’re crucial for keeping trade secrets confidential and protecting business relationships. Finally, we’ll explore a more fundamental question: Does the FTC even have the legal authority to do this? 
Our first episode explores how this unprecedented proposal came to be. To understand just how out-of-the-ordinary this proposal is, we'll journey into the history of the agency, whose past rulemakings got them labeled the "national nanny" by the Washington Post, and led to threats of defunding.
Guests:

Emily Olson, hair stylist

Leah Nylen, Bloomberg News reporter

Sandeep Vaheesan, legal director of the Open Markets Institute

Evan Starr, professor at the University of Maryland


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1. 'She Can't Own Me': Inside the FTC's Proposed Ban on Noncompetes

On UnCommon Law, legal issues, public policy, and storytelling collide. We'll explore the most important legal stories of the day: Is affirmative action in college admissions constitutional? Is it time to kill the bar exam? Should social media face special legal scrutiny? What are law firms doing to fix their lack of diversity? Produced and hosted by Matthew S. Schwartz. Winner of the 2023 American Bar Association Silver Gavel Award for Media and the Arts.

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Generative AI tools are already promising to change the world. Systems like OpenAI's ChatGPT can answer complex questions, write poems and code, and even mimic famous authors with uncanny accuracy. But in using copyrighted materials to train these powerful AI products, are AI companies infringing the rights of untold creators?
This season on UnCommon Law, we'll explore the intersection between artificial intelligence and the law. On episode one, we learned about the lawsuits filed against AI companies that trained their large language models on copyrighted work without permission. Now we'll learn about the legal defense that could give the AI companies a pass to continue scraping up whatever content they want, copyright-protected or not.
Guests:

Matthew Butterick, founder at Butterick Law, and co-counsel with the Joseph Saveri Law Firm on class-action lawsuits against OpenAI and others

Isaiah Poritz, technology reporter for Bloomberg Law

Matthew Sag, professor of law and artificial intelligence, machine learning and data science at Emory University School of Law

Mark Lemley, professor of law at Stanford Law School and the director of the Stanford Program in Law, Science and Technology, who is also representing Meta and Stability AI in the copyright cases against them

James Grimmelmann, professor of digital and information law at Cornell Tech and Cornell Law School


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2. AI Trained on Famous Authors’ Copyrighted Work. They Want Revenge – Part 2

Generative AI tools are already promising to change the world. Systems like OpenAI's ChatGPT can answer complex questions, write poems and code, and even mimic famous authors with uncanny accuracy. But in using copyrighted materials to train these powerful AI products, are AI companies infringing the rights of untold creators?
This season on UnCommon Law, we'll explore the intersection between artificial intelligence and the law. Episode one examines how large language models actually ingest and learn from billions of online data points, including copyrighted works. And we explore the lawsuits filed by creators who claim their copyrights were exploited without permission to feed the data-hungry algorithms powering tools like ChatGPT.
Guests:

Matthew Butterick, founder at Butterick Law, and co-counsel with the Joseph Saveri Law Firm on class-action lawsuits against OpenAI and others

Isaiah Poritz, technology reporter for Bloomberg Law

James Grimmelmann, professor of digital and information law at Cornell Tech and Cornell Law School


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1. AI Trained on Famous Authors’ Copyrighted Work. They Want Revenge – Part 1

When Scott Griffin visited the Haunted Trail, he expected to be scared. But he did not expect what happened after he thought the scare was over.
This special Halloween episode of UnCommon Law tells the true story of a man terrorized by a haunted house attraction. Griffin bought a ticket to a haunted house — but ended up getting more than he bargained for: two broken wrists. He sued for negligence and assault. Can someone who paid to be frightened sue when things go too far? 
Guests:

P. Christopher Ardalan, attorney at Ardalan & Associates, PLC

Larry Levine, law professor at the University of the Pacific McGeorge School of Law


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Can a Haunted House Go Too Far? 'Carrie' Scare Leads to Lawsuit

In the conclusion of UnCommon Law's season-long exploration of noncompete agreements, we look at the Federal Trade Commission's authority to ban the clauses nationwide.
We’ve reviewed how the ban would work and explored the policy arguments for and against it. Now we delve into a more fundamental question: Does the FTC even have the power to make a substantive rule like this one?
It's been 50 years since the DC Circuit Court of Appeals ruled that the FTC has substantive rulemaking power. We’ll learn about that case — National Petroleum Refiners Association v. FTC — we’ll find out why it’s so important to the FTC, and we’ll hear why many believe it would not turn out the same way today.
But that's not all! Even if courts follow National Petroleum, could the FTC get past the major questions doctrine?
The season finale of UnCommon Law features:

Richard Pierce, professor at the George Washington University Law School

Dan Papscun, antitrust reporter for Bloomberg Law

Sean Heather, senior vice president at the U.S. Chamber of Commerce

Sandeep Vaheesan, legal director at the Open Markets Institute

Orly Lobel, professor at the University of San Diego School of Law

Matt's baby


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5. If Lina Khan's FTC Bans Noncompete Clauses, What Happens Next?

The Supreme Court has effectively ended the use of race as a factor in college admissions. 
In a 6-3 ruling, along ideological lines, the divided Supreme Court struck down the admissions programs of Harvard and the University of North Carolina, which both used race as a factor in their admissions process. 
Today, on this special edition of UnCommon Law, we’ll learn how the court came to its decision. And: Did the majority leave the door open for colleges to still consider race in some circumstances? We’ll learn why some supporters of affirmative action still have a glimmer of hope.

Featuring:

Ted Shaw — Professor at the University of North Carolina, and past president of the NAACP’s Legal Defense Fund

Michelle Adams — Professor at the University of Michigan Law School

Lee Bollinger — Outgoing president of Columbia University, and former president of the University of Michigan

Edward Blum, president of Students for Fair Admissions


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1. 'She Can't Own Me': Inside the FTC's Proposed Ban on Noncompetes

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