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Your Squishmallow Isn’t Who You Think It Is: Setting The Bounds Of The Soft Toy Market 

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Photo by Pixabay on Pexels.com

By: Caroline Dolan

Squishmallows were introduced in 2017 and went viral on TikTok and Instagram during the Covid-19 pandemic in 2021. People fell in love with these affordable and huggable plushies that are available in more than 3,000 different characters. Their unique sizes and colors provide comfort and joy for all ages and even serve a niche of Squishmallow collectors. 

Trade Dress: The Look and Feel

Trademarks are “words, names, symbols, or devices” that are distinct, functional, and used in commerce to identify the source of a good. The Lanham Act provides federal protection over the good-will of such artistic creations from infringement, dilution, cybersquatting, and false advertising. It also protects consumers from being deceived by knock-off products. The Lanham Act also protects a product’s trade dress, which is “the commercial look and feel of a product or service that identifies and distinguishes the source of the product or service.” Similar to trademarks, trade dress can receive protection even without formal registration with the U.S. Patent and Trademark Office.  

To assert a trade dress infringement claim, a plaintiff must demonstrate that their product’s trade dress  (1) is distinctive; (2) is owned by the plaintiff; (3) is nonfunctional; and (4) that the defendant used the trade dress without consent in a way that is likely to confuse the ordinary consumer as to the source, sponsorship, or affiliation of the product. The Ninth Circuit has held that a trade dress that fails to be inherently distinctive may still be protected if it possesses a secondary meaning. To show a secondary meaning, a plaintiff must prove “a mental recognition in buyers’ and potential buyers’ minds that products connected with the [trade dress] are associated with the same source.” 

Build-A-Bear vs. Squishmallow

Warren Buffet’s investment company, Berkshire Hathaway, owns Alleghany Corporation which is the parent company of Jazwares LLC. Jazwares oversees Kelly Toys which is a leading toy manufacturer and the creator of Squishmallows. Squishmallows have seen its sales boom since 2021 and can be purchased in a variety of spaces, including in bulk at your local Costco. However, in January 2024, to offer “optimal hugging benefits” in light of Valentine’s Day, Build-A-Bear launched its Skoosherz line—a variety of collectible plush pillow-like toys. 

Once the Sckoosherz line was released, Kelly Toys promptly filed a lawsuit in the Central District of California claiming that Build-A-Bear’s Skoosherz line infringes on Squishmallow’s trade dress because Skoosherz imitate Squishmallows’ “shape, face style, coloring and fabric.” Kelly Toys’ complaint alleges that Skoosherz “have the same distinctive trade dress as the popular Squishmallows, including: shaped fanciful renditions of animals/characters; simplified Asian style Kawaii faces; embroidered facial features; distinctive and nonmonochrome coloring; and velvety velour-like textured exterior.” It asserts that these similarities seek to “trick consumers” and has harmed the Squishmallows brand by “divert[ing] sales and profits from Kelly Toys to Build-A-Bear.” Kelly Toys is seeking unspecified damages and an injunction to stop the sale of Skoosherz. In Kelly Toys’ view, Build-A-Bear is intentionally copying the distinct physical characteristics and exterior appearance of Squishmallows to capitalize on Squishmallows’ international success.

Build-A-Bear has responded by filing its own complaint in the Eastern District of Missouri asserting that its Skoosherz line is merely an extension of its already existing line of animal toys. In Build-A-Bear’s view, Skoosherz merely imitates the popular plushies that Build-a-Bear has previously sold. For instance, Build-A-Bear claims that the Skoosherz Pink Axåolotl is merely an imitation of its original Pink Axolotl toy. The company is seeking a declaratory judgment stating that Skoosherz do not infringe on the Squishmallow trade dress and furthermore, that the Squishmallow trade dress is not even protectable under the Lanham Act. Build-A-Bear asserts that the Squishmallow trade dress lacks a consistent look and feel and shares characteristics with toys already present in the market. According to its complaint, “[i]f each aspect of the claimed trade dress were in fact protected trade dress, it would be virtually impossible for competitors to create alternative designs.”

Bearing a Squishy Future

Trade dress is a critical element of trademark law and serves to safeguard the goodwill of creators, the protection of consumers, and a competitive market. Although this dispute resides in the market of soft toys, it highlights a new perspective of trade dress law and application. If a jury trial is granted, Kelly Toys will likely rely on side-by-side comparisons to highlight the visual similarities between Squishmallows and Skoosherz as well as present consumer comments that have been made on Build-a-Bear’s social media account dubbing Skoosherz as “knockoff Squishmallows.” Although such evidence can support Kelly Toys’ infringement claims, it will still have the initial burden of proving that its trade dress is protectable.

Next on the Chopping Block? The Legal War Over the ACC

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By: Patrick Paulsen

The world of college sports is constantly changing. With the rise of name, image, and likeness (“NIL”), direct payment of players, and licensing in video games, the world of college athletics is a hotbed of legal activity. In addition, massive TV rights deals have caused seismic shifts in college sports, including the demise of the Pac-12. Much is at stake and even more is in flux, so it is no surprise that a new battle is emerging over another major college sports conference: the Atlantic Coast Conference (“ACC”). 

The Latest Conference Shift in College Football

Two of the ACC’s member schools, Florida State University and Clemson University, have engaged in legal battles to potentially leave the conference. Although Florida State’s snubbing from last season’s College Football Playoff was likely the straw that broke the camel’s back, the true motivating factor, as with the demise of Pac-12, appears to be money. “ACC members make roughly $30 million less per year than schools in the Big-10 and SEC.” As with other conferences, the ACC is held together by its grant of rights, an agreement whereby its member schools transfer their media rights to the conference to negotiate media deals collectively on their behalf. 

The ACC’s grant of rights is at the root of this legal battle and is why this conference’s potential breakup differs considerably from the Pac-12 or Big-12 realignments. The ACC’s grant of rights functions to protect the conference from realignment by providing the conference with each school’s media rights through 2036. In addition, the ACC’s constitution imposes a hefty exit fee, around $130 million for Florida State. Compared to other conferences such as the Pac-12 (whose grant of rights expires in August) or the Big-12 (whose exit fee is approximately $50 million), these hurdles to exit are substantial. Florida State estimates their total exit cost at around  $572 million to leave the ACC, hence the current litigation. 

The ACC and Florida State Litigation

This legal saga began in earnest on December 21st, 2023 when the ACC preemptively sued Florida State, likely to maintain the action in North Carolina State Court rather than a Florida court. Florida State’s Board of Trustees sued the ACC the following day, before the news of the ACC’s suit became public. The amended complaint filed by the ACC seeks “a declaration that Florida State is equitably estopped from challenging the validity or enforceability of the grant of rights” along with injunctive relief requiring Florida State to uphold its obligations to the conference and their agreements. 

Florida State’s lawsuit argues several legal theories, notably that the grant of rights is unenforceable as an “unreasonable restraint of trade” under Florida Statute 542.18, that the exit fees are unenforceable penalties due to being unconscionable and contrary to public policy, and that the ACC materially breached its fiduciary duties and contracts with Florida State. Florida Statute 542.18 is an antitrust that has recently been utilized to the benefit of Florida based firms outside the realm of sports.

The jurisdiction of these suits is likely as important as the claims. These differing lawsuits filed in differing state courts create hard to resolve issues, such as the battle over trade-secrets, when the controversy is viewed in totum. 

These lawsuits have clear third-party impacts: ESPN filed a motion in the North Carolina litigation supporting the ACC, alleging that Florida State’s attorneys may have “committed a felony by knowingly disclosing ESPN’s trade secrets.” Florida State’s filings contained non-public details from the media agreements between the ACC and ESPN. Meanwhile, in Florida, the Attorney General sued the ACC for refusing to publicly disclose the same agreements, claiming that under Florida law, they constitute public records due to the involvement of a government entity (Florida State University). 

Clemson Joins the Fray

In addition to the two lawsuits battling Florida State, Clemson University brought suit against the ACC. In what has been called a “pincer attack,” the Clemson lawsuit attacks the ACC’s exposed flank by picking up legal theories which fill the gaps left by the Florida State claims. Clemson’s suit embodies two main legal theories. The first is that § 1.4.5 of the ACC’s Constitution, which imposes an exit fee “equal to three times the total operating budget” of the conference (approximately $140 million), is unenforceable as it constitutes a “financial penalty” that is “unconscionable” and “against public policy.” The second theory claims that the conveyance of media rights in the ACC’s grant of rights should be interpreted to encompass only the rights to athletic events which occurred during a member university’s tenure as a member. 

Clemson argues that the exit fee for the conference has “ballooned to a point that was unimaginable in 2012, and is unconscionable, unenforceable, and in violation of public policy . . . .” Clemson is arguing that the common interpretation of the grant of rights is incorrect, and that instead of a blanket grant of media rights, the grant of rights is limited to those rights which are “necessary for the Conference to perform the contractual obligations of the Conference expressly set forth in the ESPN Agreement.” Clemson claims that this phrase makes the grant narrower than commonly believed, by limiting their conveyance of rights only to events which occur while they are members of the ACC, and not for the length of the agreement, regardless of conference affiliation. 

If successful on these points, Clemson’s cost of leaving the ACC would drop from around $572 million to somewhere around the $30-50 million that other conferences require. With so much at stake, the future of the ACC is unclear; however, there are some clues to what may happens next.

Can a Solution Be Found?

With three different lawsuits in as many states, each concerning particular state law claims, the chances of suits being removed and consolidated to federal court are low for the immediate future. Because each party is hoping for a “home court advantage” in their respective jurisdictions, neither side is motivated to consolidate to a neutral forum. In addition, Florida State is invoking sovereign immunity to argue a North Carolina court does not have jurisdiction. This, and other maneuvers, such as appeals and various procedural motions, will likely keep the cases open in each jurisdiction until a final judgment is reached on a  given issue. A favorable ruling to a party would allow one side to argue, based on the “full faith and credit” clause of the Constitution, that other states must accept their ruling. Should each side find favorable rulings in their home state, all bets are off as to how the “full faith and credit” clause will be interpreted to untangle everything, and resolution by the U.S. Supreme Court enters the realm of possibility. 

Due to court cases likely taking years to play out, and with the August 15th deadline to withdraw from the conference for the 2025-26 season approaching, there is a high incentive to settle or mediate outside of the courts. However, the perfect solution may be hard to determine with hundreds of million dollars at stake. How motivated to leave the ACC are Florida State and/or Clemson? How much are schools such as Florida State willing to pay to escape the ACC? As early as last August, Florida State initiated discussions with JP Morgan regarding raising the necessary exit fees through private investment. Other ACC member schools, such as North Carolina, are rumored to have interest in leaving the conference. There may be as little predictability in a settlement as there would be with these cases proceeding to trial. 

Conclusion

The merits of these cases have yet to be evaluated in each jurisdiction, so the sports and legal worlds will have to wait. Should settlements fail, any court decision will change the landscape of the ACC and the fortunes of its member universities by hundreds of millions of dollars. The docket watching may prove to be as exciting as any ACC athletic event, as all interested parties await even more shock waves through the dynamic world of college athletics.

AI’s Creative Ambitions: A Case Review of Thaler v. Perlmutter (2023)

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By: Stella B. Haynes Kiehn

Is it possible for AI to achieve genuine creativity?  Inventor and self-dubbed “AI Director”, Dr. Stephen Thaler (“Thaler”), has been attempting to prove to the U.S. Copyright Office for the past several years that not only can AI be creative, but also that AI can create works capable of reaching copyright standards.

On November 3, 2018, Thaler filed an application to register a copyright claim for the work, A Recent Entrance to Paradise. While Thaler filed the application, Thaler listed “The Creativity Machine”, as the author of the work, and himself as the copyright claimant. According to Thaler, A Recent Entrance to Paradise was drawn and named by the Creativity Machine, an AI program. The artwork “depicts a three-track railway heading into what appears to be a leafy, partly pixelated tunnel.” In Thaler’s copyright application, he noted that A Recent Entrance to Paradise “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”

The U.S. Copyright Office denied Thaler’s application primarily on the grounds that his work lacked the human authorship necessary to support a copyright claim. On a second request for reconsideration of refusal, “Thaler did not assert that the Work was created with contribution from a human author … [but that] the Office’s human authorship requirement is unconstitutional and unsupported by case law.” The U.S. Copyright Office once again denied the application. Upon receiving this decision, Thaler appealed the ruling to the U.S. District Court for the District of Columbia.

On appeal, Judge Beryl A. Howell reiterated that “human authorship is an essential part of a valid copyright claim.” Notably, Section 101 of the Copyright Act requires that a work have an “author” to be eligible for copyright. Drawing upon decades of Supreme Court case law, the Court concluded that the author must be human, for three primary reasons.

First, the Court stated that the government adopted the Copyright Clause of the U.S. Constitution to incentivize the creation of uniquely original works of authorship. This incentivization is often financial, and non-human actors, unlike human authors, do not require financial incentives to create. “Copyright was therefore not designed to reach” artificial intelligence systems.

Second, the Court pointed to the legislative history of the Copyright Act of 1976 as evidence against Thaler’s copyright claim. The Court looked to the Copyright Act of 1909’s provision that only a “person” could “secure copyright” for a work. Additionally, the Court found that the legislative history of the Copyright Act of 1976 fails to indicate that Congress intended to extend authorship to nonhuman actors, such as AI. To the contrary, the congressional reports stated that Congress sought to incorporate the “original work of authorship” standard “without change.”

Finally, the Court noted that case law has “consistently recognized” the human authorship requirement. The decision pointed to the U.S. Supreme Court’s 1884 opinion in Burrow-Giles Lithographic Company v. Sarony, in upholding the constitutionality of the human only authorship requirement. This case, upholding authorship rights for photographers, found it significant that the human creator, not the camera, “conceived of and designed the image and then used the camera to capture the image.”

Ultimately, this decision is consistent with recent case law, and administrative opinions on this topic. In mid 2024, the Copyright Office plans to issue guidance on AI and copyright issues, in response to a survey of AI industry professionals, copyright applicants, and legal professionals. In relation to the Creativity Machine, one of Thaler’s main supporters in this legal battle is Ryan Abbott, a professor of law and health sciences at the University of Surrey in the UK, and a prominent AI litigant. Abbott is the creator of the Artificial Inventor Project—a group of intellectual property lawyers and an AI scientist working on IP rights for AI-generated outputs. The Artificial Inventor Project is currently working on several other cases for Thaler, including attempting to patent two of the Creativity Machine’s other “authored” works. While the District Court’s decision seems to mark the end of Thaler’s quest to copyright A Recent Entrance to Paradise, it seems as if the fight for AI authorship rights in copyright is only beginning.

Gambling on Sports Betting: Maverick and the Future of Gaming in Washington 

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By Sofia Ellington

In 2018, a huge decision by The United States Supreme Court changed the landscape of legalized gambling. In Murphy v. NCAA, the Court functionally legalized sports betting by striking down a federal law that had categorically prohibited the practice. The decision left the door open for states to decide how to handle regulation. Sports betting is a multi-billion dollar industry, and many states have moved to legalize the practice to get a piece of the growing pie. 

Washington State took the opportunity to legalize sports betting by entering into tribal-state compacts with 29 federally recognized Tribes under the Indian Gaming Regulatory Act (IGRA). Under the compact, sports betting is legal, but only if done on tribal land. Regulating sports betting through the IGRA framework is in line with how the State has regulated class III gaming since the late 1980s. However, in January 2022, Maverick Gaming, a non-Tribal affiliated gaming and casino enterprise, filed suit to challenge the compacts. The outcome of the case, which is currently pending in the Ninth Circuit, could jeopardize the future of sports betting in the state and create chaos in the gaming regulatory framework. 

A Short Summary of Tribal Gaming’s Long History

Before diving into the controversy around sport betting, it is essential to understand the tension between the States, Federal Government, and Tribes in regulating the activity. Gaming as we know it today, started with Tribal bingo operations in the 1970’s. Tribes are critical to regulating gaming nationwide and their operations are estimated to bring in around $6.6 billion a year to the Washington State economy alone, funding schools, roads, and creating thousands of jobs. 

As sovereigns, Tribes have inherent authority to authorize gaming on their lands absent interference from the State. However, Congress has authorized several encroachments on that sovereignty, such as Public Law 280. P.L. 280 conferred criminal and civil jurisdiction over certain activities in Indian Country to the state, where before they had no inherent authority. In California v. Cabazon Band of Mission Indians, California attempted to enforce criminal charges on Tribal bingo operations under their P.L. 280 authority, citing concern over the connection between gaming and organized crime. The U.S. Supreme Court rebuked this effort to infringe on Tribal sovereignty, holding that the state was not able to prohibit gaming in Indian Country if that activity was otherwise legal in the state. 

In 1988, the year after Cabazon was decided, Congress once again imported the State’s interest into regulation of Indian country by passing IGRA. Under IGRA, Tribes could run Class I and Class II gaming without state interference. They could only operate higher stakes games under Class III, such as roulette, craps, slot machines, and other casino-style games, by entering into a compact with the state. Sports betting is a Class III game, therefore subject to state-tribal compacts. Each compact must be reviewed and approved by the United States Secretary of the Interior under IGRA. Washington State, along with the majority of states, has chosen to regulate Class III gaming through these compacts. Since IGRA was passed, the law has been a mutually beneficial source of economic development both in and out of Indian Country. 

Maverick Gaming LLC v. United States 

In January 2022, Maverick Gaming filed suit against the United States for approving Washington’s sport betting compacts with Tribes in violation of the Administrative Procedures Act (APA). Maverick alleges sweeping claims, including that the compacts violate IGRA, Equal Protection, and the Tenth Amendment by allowing a “discriminatory tribal gaming monopoly.” They are also pursuing the nuclear option, alleging that IGRA itself is unlawful and must be struck down. 

While the Ninth Circuit is expected to publish a decision that rests on the threshold issue of the Tribe’s immunity from suit instead of on the merits, Maverick would still be unlikely to succeed on the merits of their equal protection claim. Generally, the government is allowed to treat individuals differently as long as the reasons for the distinction are rationally related to a legitimate government interest. This is a fairly easy standard to meet as courts are generally highly deferential to the legislature under rational basis scrutiny. However, higher levels of scrutiny are used when the government is either impermissibly interfering with the exercise of a fundamental right, or disadvantageous to a suspect class such as race, or sex. Maverick is asking the court to review the gaming compacts under strict scrutiny because they argue that the compacts are making a racially based classification, but that is a fundamental misunderstanding of the legal status of tribes. 

As Washington State has pointed out in their reply brief, Tribal status is considered a political, not a racial, classification. This means that if the merits of the equal protection claim were analyzed, it would be under rational basis, not strict scrutiny, and the classification would only need to be reasonable. Washington has an interest in keeping gambling highly regulated and thus less prone to organized crime. That interest is achieved through allowing Tribes to run sports betting operations because they have a long history of safely regulating other Class III games. Therefore, treating Tribal gaming operations differently than non-tribal operations passes rational basis scrutiny and is not a violation of equal protection. 

The Future of Sports Betting 

While non-tribal gaming enterprises and sports teams may hope to see the court invalidate IGRA and the state-tribal compacts in order to get a piece of the pie, a decision that touches the merits of IGRA could have unintended consequences and throw the entire industry into chaos. States still have the option of criminalizing ALL gambling, regardless of the entity engaged in the activity. In fact, if the court invalidates the Washington State compacts, Maverick would not get the relief they desire because sports gambling would remain unlawful for non-Tribal entities, as well as become unlawful for Tribes. 

Although Maverick is unlikely to prevail in their challenge to IGRA and the Washington State-Tribal compacts, the fervor around expanding sports betting beyond tribal operations is growing nationwide. Challenges to IGRA compacts are concerning because they could potentially affect the ability of Tribes to expand their economic development and tread on their authority to run gaming activities on their land if they are struck down. Currently, another sports betting case is pending at the U.S. Supreme Court on a petition of certiorari. The U.S. Supreme Court has not demonstrated, with the surprising exception of Justice Gorsuch, a deep understanding of the role of Tribal sovereignty in our constitutional structure. Any case that reaches them on questions of American Indian Law are in danger of being misconstrued in a way that backslides to limit Tribal sovereignty. Sports betting is no exception. 

Pretty Legal Liars: Polygraph Pre-Employment Screening and Admissibility

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By: Sam Kuper 

When (fingers crossed) I graduate from law school next spring, my six-figure law school investment will come up against the bar—a test that almost every attorney in Washington State has taken since the Multistate Bar Examination (MBE) was introduced in 1972. While the content of the test itself has changed forms across time and jurisdictions—the exam was only administered orally for over a hundred years, and the Washington Supreme Court just announced huge changes for 2026—one requirement for bar admission has stayed consistent: “Every person . . . must be of good moral character and possess the requisite fitness to practice law.” The character and fitness test (“C&F”) requires disclosure of an incredible amount of personal information, from listing the addresses of every place one has ever lived, to that one speeding ticket received in Yakima six years ago, there are few stones left unturned. Many states even require the disclosure of expunged and sealed convictions. According to the American Bar Association, the C&F requirement “In theory . . . protects the public from individuals whose past conduct shows they will not be scrupulous lawyers.” Yet, applicants are rarely refused admission based on character and fitness issues. Once admitted to the bar, lawyers then must abide by the Washington State Rules of Professional Conduct or risk administrative investigation and sanctions. These rules mostly do not apply to law students, save for ABA Rule 8.1—“An applicant for admission to the bar . . . shall not: (a) knowingly make a false statement of material fact.” But if bar examiners are concerned with complete disclosure on bar applications, why do they not require a polygraph test? The answer lies in part on its controversial scientific backing, along with the structure of the legal profession itself. 

Polygraphs as “Junk Science”

Invented in 1921 by a Berkley police officer, modern polygraphs measure changes in physiological factors such as heart rate, blood pressure, respiration, perspiration, and skin conductivity to, in theory, detect when subject is lying versus telling the truth. According to a 2006 Department of Justice report, polygraphs have been used for over seven decades by federal agencies, but were not widespread or centralized until the 1970s. Their most common uses include aiding criminal and administrative investigations, foreign counterintelligence, and counterterrorism investigations. While Wikipedia refers to polygraphs as “junk science” in the first sentence of its entry, the American Polygraph Association—a professional organization that establishes training, standards, ethical practices, research, and instrumentation for polygraph examiners—claims “accuracy rates exceeding 90 percent.” Wikipedia is hardly the polygraph’s only naysayer—a 2003 National Academy of Sciences (NAS) report concluded that, at least in the context of pre-employment screening, “its accuracy in distinguishing actual or potential security violators from innocent test takers is insufficient to justify reliance on its use in employee security screening in federal agencies.” This conclusion prompted the Department of Energy to promulgate a regulation in 2006 that eliminated screening tests without specific cause. A 2019 report by a University of Minnesota psychology professor concluded that, even after two decades, NAS skepticism surrounding the polygraph’s efficacy stands. 

Current Polygraph Legislation

Despite the controversy involving its scientific efficacy, the polygraph remains in considerable use by both federal and state agencies. In 1988, Congress enacted the Employee Polygraph Protection Act (EPPA) which prohibits most private employers from using the polygraph either in pre-employment screening or during the course of employment. However, it still exempted federal agencies like the FBI and NSA, along with other private employers who have “significant impact” on the “national security of the United States.” Many states have similar legislation. In Washington State it is unlawful to require lie detector tests for employees or prospective employees—with exemptions for employment involving law enforcement, controlled substances, and national security. In fact, a polygraph exam is a pre-employment requirement for people seeking employment at a law enforcement agency in Washington State, such as any police department officer or corrections officer. Only five states—Massachusetts, Michigan, Minnesota, New Jersey, and Oregon—have complete prohibitions on polygraph usage by employers, public and private, with some limited exceptions based on consent. To provide some context as to the popularity of the polygraph by states, a 1994 survey of the 699 largest police agencies in the United States determined 62% had an active polygraph screening program. The survey also determined that approximately 25% of the people tested by such programs were disqualified from police employment based on information gleaned from the polygraph. While this survey was conducted thirty years ago, there is little reason to believe its popularity, particularly for pre employment screening, has waned among law enforcement agencies. For example, in 2019, the DEA issued a memorandum stating it will no longer hire Special Agent or Intelligence Research Specialist applicants who fail a polygraph examination. In 2020, the Washington State Legislature proposed to remove the polygraph examination as a requirement for law enforcement—but it was quickly reinstituted in an amendment.

Polygraph Litigation and Admissibility

Considering its dubious scientific underpinnings, it should be no surprise that the polygraph and its results have been the subject of plenty of litigation. Neither the Federal Rules of Evidence (FRE) nor the US Code have a specific provision concerning the admissibility of the polygraph examination results. However, admissibility of scientific evidence is generally governed by FRE 702, along with precedent in Frye v. United States (D.C. Cir. 1923) and Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). These tests involve the judge deciding admissibility based on either “general acceptance” in the scientific community (Frye) or a non-exhaustive list of factors (Daubert) which includes “general acceptance.” While the Supreme Court has not given a blanket prohibition to polygraphs on this basis, in United States v. Scheffer (1998), the Court ruled that Military Rule of Evidence 707—which prohibits the use of polygraph results in court-martial proceedings—did not violate a defendant’s Sixth Amendment right to present a fair defense. There, the defendant wanted to introduce his polygraph results into evidence that he did not use drugs while enlisted in the military. Without specific guidance, federal and state courts are split on the issue, with some having a per se exclusion, and others allowing it if, for example, both sides agree to its inclusion (this is the Washington State rule). For example, in U.S. v. Posado (1995), the Fifth Circuit held that its per se rule against the admission of polygraph evidence in federal court was no longer viable in light of the new Daubert standard.

Will Bar Associations Require Polygraphs?

While there may be legal grounds for the institution of a polygraph on the C&F portion of the bar, we will likely never see this requirement be implemented. Bar associations generally operate under the delegated authority of the state’s highest court. They regulate bar admission, licensing, and discipline for attorneys, but are not necessarily an employer and thus perhaps not subject to the prohibition. This makes the bar association unique from law enforcement agencies, who are both employers and licensors. However, by precluding prospective attorneys from the bar, it effectively eliminates their ability to work for legal employers (this makes for interesting statutory interpretation). Further, considering the legal profession is more or less self-regulated, there would likely be outcry by attorneys if such a “junk science” was required for bar admission.