Volume 32 Number 1 Hilary Term 2015 by Cooley Law School

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW SCHOOL BOARD OF DIRECTORS Don LeDuc, President and Dean Hon. Louise Alderson, Vice Chairman Thomas W. Cranmer Sharon M. Hanlon Hon. Jane E. Markey Kenneth V. Miller Lawrence P. Nolan, Chairman Hon. Bart Stupak Dennis A. Swan

James W. Butler III Scott A. Dienes W. Anthony Jenkins Hon. Stephen J. Markman James C. Morton Edward H. Pappas Hon. Richard F.Suhrheinrich

Cherie L. Beck – Corporate Secretary

Kathleen A. Conklin – Chief Financial Officer, Treasurer

PROFESSOR, FOUNDER, AND PAST PRESIDENT The Honorable Thomas E. Brennan DEANS EMERITI Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) DISTINGUISHED PROFESSORS EMERITI Curt Benson Kathleen Butler Karen Chadwick Pat Corbett Mary D’Isa Norman Fell James Hicks John Kane Mara Kent Dena Marks Lawrence Morgan Nora Pasman-Green Philip Prygoski Charles Senger Brent Simmons Gina Torielli Cynthia Ward Nancy Wonch

David Berry Evelyn Calogero Dennis Cichon David Cotter Mark Dotson Judith Frank Emily Horvath Eileen Kavanagh R. Joseph Kimble Dan McNeal Maurice Munroe James Peden John Rooney Chris Shafer Norman Stockmeyer Ronald Trosty William Weiner Ann Miller Wood

Ronald Bretz Terrence Cavanaugh Julie Clement Michael Cox Cynthia Faulkner Elliot Glicksman Peter Jason Peter Kempel (deceased) Dorean Koenig Helen Mickens Charles Palmer Ernest Phillips Marjorie Russell Jane Siegel John Taylor William Wagner F. Georgann Wing

PROFESSORS EMERITI Sherry Batzer Lewis Langham Donna McKneelen Dan Ray

James Carey Ashley Lowe Florise Neville-Ewell Kevin Scott Karen Truszkowski

Heather Garretson Paul Marineau Norman Plate Lorna Patricia Thorpe-Mock

DEANS Don LeDuc President, Dean, and Professor of Law Tracey Brame Assistant Dean and Professor of Law

Christine Church Associate Dean and Professor of Law

Lisa Halushka Assistant Dean and Professor of Law

Laura LeDuc Associate Dean of Planning, Assessment & Accreditation

Jeffrey L. Martlew Associate Dean and Professor of Law

Charles C. Mickens Associate Dean of Innovation and Technology

Nelson P. Miller Associate Dean and Professor of Law

James D. Robb Associate Dean of External Affairs

Duane A. Strojny Associate Dean and Professor of Law

Ronald Sutton Assistant Dean and Associate Professor

Kathy Swedlow Assistant Dean and Professor of Law

Amy Timmer Associate Dean and Professor of Law

Charles R. Toy Associate Dean of Career and Professional Development

Joan Vestrand Associate Dean and Professor of Law

Paul J. Zelenski Associate Dean of Enrollment & Student Services

PROFESSORS Frank C. Aiello Erika Breitfeld Paul Carrier Lisa DeMoss Gerald Fisher Karen Fultz Christopher Hastings Linda Kisabeth Gerald MacDonald Michael McDaniel Martha Moore Kimberly Oâ&#x20AC;&#x2122;Leary John N. Scott Stevie J. Swanson Patrick Tolan

Gary Bauer Tammy Brown Asher Bradley Charles Renalia Dubose Anthony Flores Marjorie Gell Richard C. Henke Tonya Krause-Phelan Mable Martin-Scott Marla Mitchell-Cichon Monica Nuckolls Lauren Rousseau Dan Sheaffer Jeffrey Swartz Christopher Trudeau Victoria Vuletich

Brendan Beery Jeanette Buttrey Mark Cooney David Finnegan Dustin Foster Katherine Gustafson Barbara Kalinowski Joni Larson Daniel W. Matthews Michael K. Molitor John Nussbaumer Devin Schindler Paul Sorensen David Tarrien Gerald Tschura

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW HILARY 2015 BOARD OF EDITORS Jared Schultz Editor-in-Chief Greg Masters Interim Editor-in-Chief Charlynn Turner Symposium Editor

Melissa Gilchrist Managing Editor

Matthew Elzinga Articles Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Interim Articles Editor

Michelle Easter Solicitation Editor Elizabeth Devolder Interim Solicitation Editor

Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Angie Bailey Nemer Baki Debra Berg-Simon Kevin Berkowitz Daron Berman Alison Center Taycee Friar Lauren Frieder

Sarah Grodek Erin Haney Ken Kharha James Klinedinst Mark Messerschmidt Scott Miller Candis Najor Sumayya Saleh

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Scott Sawyer Jerrod Simpson Cristina Solis Stephanie Wever Holliann Willekes Qiong Zhao

SENIOR ASSOCIATE EDITORS Minyon Bolton Melissa Inchauste Jenn Jager

Rose Kleff Ben Lesnick

Taneashia Morrell Jordan Wilson

ASSOCIATE EDITORS Dalton Carty Tiffany Cerniglio Andrew Doezma

Sarah Harris Caleb Loomis

Nick Sato Kristi Trigg

Honorary Members Chief Judge Gerald E. Rosen U.S. District Court, Eastern District of Michigan The Honorable Marilyn Kelly Former Chief Justice, Michigan Supreme Court The Honorable Jennifer M. Granholm Former Governor, State of Michigan Joseph Kimble, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School Chris Shafer, Distinguished Professor Emeritus Western Michigan University Thomas M. Cooley Law School The Honorable Richard F. Suhrheinrich United States Court of Appeals, Sixth Circuit The Honorable Clifford W. Taylor Former Chief Justice, Michigan Supreme Court The Honorable Thomas E. Brennan Western Michigan University Thomas M. Cooley Law School The Honorable Dennis C. Drury Judge of the Fifty-Second District Court, Retired The Honorable Robert P. Young, Jr. Chief Justice, Michigan Supreme Court Kara Zech Thelen Faculty Advisor

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2015 Recipient: Ben Lesnick EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Hilary 2015 Recipients: Mark Messerschmidt, Jerrod Simpson DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Hilary 2015 Recipient: Matthew Elzinga

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW TRINITY 2015 BOARD OF EDITORS Greg Masters Editor-In-Chief Elizabeth Devolder Interim Editor-In-Chief

Melissa Gilchrist Managing Editor

Charlynn Turner Symposium Editor

Kendall Perry Interim Managing Editor

Christopher Marker Interim Symposium Editor

Rachel Sexton Subcite Editor

William Bellor-Yeh Articles Editor Mark Cooney Faculty Advisor

Nick Brown Business Editor

Erika R. Breitfeld Faculty Advisor

Sarah Colling Solicitation Editor Dawn Beachnau Administrator (In Memoriam)

ASSISTANT EDITORS Angie Bailey JD Baldwin Debra Berg-Simon Kevin Berkowitz Alison Center Nardeen Dalli

Taycee Friar Sarah Grodek Zachariah Green Marisa Grifka Jennifer Hanna Mariam Ibrahim Scott Miller

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Kyle Oâ&#x20AC;&#x2122;Mara Cristina Solis Skyler SpurlingNewsome Stephanie Wever Holliann Willekes

SENIOR ASSOCIATE EDITORS Dalton Carty Tiffany Cerniglio

Andrew Doezma Sarah Harris Caleb Loomis

ASSOCIATE EDITOR Ian Rothe

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Nick Sato Kristi Trigg

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2015 Recipient: Dalton Carty EUGENE KRASICKY AWARD This award is presented to the Assistant Editors of the Western Michigan University Thomas M. Cooley Law Review who made the most significant contributions to publication of the Law Review. Trinity 2015 Recipients: Holliann Willekes, Cristina Solis DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Thomas M. Cooley Law Review Voting Board of Editors who made the most significant contribution to the Law Review through leadership and dedication. Trinity 2015 Recipient: Charlynn Turner

Contents

Volume 32

2015

Issue 1

From the Editor ............................................................................ xiii

Article Researchers' Privilege: Full Disclosure Dr. Frank C. Woodside, III, & Michael J. Gray ......................... 1

Comments A Caring Definition of "Care": Why Courts Should Interpret the FMLA to Cover Unconventional Treatment of Seriouslly Ill Family Members Margaret Wright......................................................................... 35 Addressing the Needs of Overlooked Victims: Providing Child Support for Children of Human Trafficking Victims Cristina Solis .............................................................................. 77

FROM THE EDITOR The Western Michigan University Thomas M. Cooley Law Review board of editors is pleased to bring you the first issue in Volume 32. This is a momentous occasion, as you are now holding the first issue published under the title Western Michigan University Thomas M. Cooley Law Review, following the law school’s affiliation with Western Michigan University. Our journal was first published in 1982 under the title Cooley Law Review, and the title Thomas M. Cooley Law Review was adopted with Volume 8 in 1991. This issue features an article written by two prominent attorneys, Dr. Frank C. Woodside, III (who is also a medical doctor), and Michael J. Gray, on the topic of the “researchers’ privilege.” The article is based on the authors’ experience in litigation, representing parties who either raised the privilege in response to discovery requests or parties who opposed the assertion of the privilege when raised by others. Unlike the purely academic focus of some scholarly legal articles, this article comes from the trenches but still presents the issue with a great depth of research and cogent analysis. This issue also features two student-written pieces, one proposing a broader definition of “care” in the Family and Medical Leave Act and another advocating for legislation that would allow child support to reach the children of domestic human-trafficking victims. Both of these pieces address important points of law that can have significant consequences for families and children. The first issue in a new volume of the Law Review typically features articles from the previous year’s symposium. Our last symposium, The Changing Face of Law: What Innovative Attorneys are Doing Today to Succeed, brought together a diverse group of successful attorneys for a frank and informative panel discussion on the economic and business challenges that practitioners are confronting in the new economy. The discussion was thoughtprovoking and provided new ideas for current law students who will be entering a changing, and challenging, market for legal services. The symposium did not lead to any articles for publication, but the contributions of the symposium speakers should still be acknowledged in the pages of the Law Review. On that note, I extend our thanks to the Honorable James M. Alexander of the Oakland County Circuit Court; Barbara L. McQuade, United States Attorney for the Eastern District of Michigan; Megan P. Norris of Miller, xiii

Canfield, Paddock and Stone; Neil MacCallum of Collins Einhorn Farrell PC; Timothy K. McGuire, Executive Director of the Michigan Association of Counties; and Thomas Rombach, President of the State Bar of Michigan. Finally, I would like to thank the Law Review’s former faculty advisor, Kara Zech Thelen, for her dedicated service to our publication, and I would like to welcome our newly appointed faculty advisors, Professor Mark Cooney (reprising his role—welcome back!) and Assistant Professor Erika R. Breitfeld. — GREG MASTERS

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RESEARCHERS’ PRIVILEGE: FULL DISCLOSURE DR. FRANK C. WOODSIDE, III,* & MICHAEL J. GRAY**† ABSTRACT An ever-growing chorus of academicians report that with the expanding number of academic journals there is a concomitant increase in the number of articles based on questionable methodology. Many published studies contain improper statistical conclusions, flawed methodology, and results that cannot be replicated. The recent controversy concerning the failure of parents to vaccinate their children because of the recommendations of flawed research exemplifies this crisis. This epidemic of faulty research has been exacerbated recently by the spread of low-quality academic journals and “pay-to-publish” journals, which will publish virtually * Dr. Frank Woodside is of counsel to the law firm of Dinsmore & Shohl and is a nationally known trial lawyer representing manufacturers of pharmaceutical and medical devices, chemicals, and flavorings, as well as producers of consumer products. Over a period of more than 40 years, he has tried more than 80 cases to verdict or judgment, serving as primary trial counsel in medical malpractice, product liability, and mass tort cases. Dr. Woodside is the Chairman Emeritus of Dinsmore's Toxic and Environmental Tort Practice Groups. He received his B.S. in Microbiology from The Ohio State University, his J.D. (cum laude) from The Ohio State University Moritz College of Law, and his M.D. from the University of Cincinnati. ** Michael Gray is an associate at Dinsmore & Shohl, representing clients in matters involving environmental law, mass tort litigation, toxic tort litigation, regulatory compliance, and product stewardship. Mr. Gray is an Iraq veteran and former Air Force officer. He received his B.S. in Civil Engineering from Michigan State University, his M.S. in Engineering Management from the Air Force Institute of Technology, and his J.D. from the University of Notre Dame Law School. † The research for and writing of this article were performed in their entirety by the two authors who received no compensation from any source for this work. Furthermore, the authors did not pay any fees for having this article published, and no such fees were paid on their behalf by any source. The issue of “academic privilege” first came to our attention in a case where we (as counsel for the defendant) unsuccessfully raised it some 30 years ago. See Procter & Gamble Co. v. Swilley, 462 So. 2d 1188 (Fla. Dist. Ct. App. 1985). In other litigation in which we were involved, West Virginia University raised the issue in response to our effort to seek discovery from a professor. See Ohio Valley Envtl. Coal. v. U.S. Army Corps of Eng’rs, No. 1:11MC35, 2012 WL 112325 (N.D. W. Va. Jan. 12, 2012). The authors thank the editors of the Western Michigan University Thomas M. Cooley Law Review for their helpful comments and suggestions.

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anything for a fee. This Article provides an analysis of a growing crisis of reliability in scientific research and how the so-called “researchers’ privilege” allows faulty research to go undetected. This Article delineates the reasons why it is difficult, if not impossible, to evaluate published research findings without access to the underlying information that researchers have in their possession. The Article then analyzes the state of the law regarding the ability of researchers to withhold records and data based on the so-called “researchers’ privilege.” Finally, the Article explains why courts should favor the disclosure of research data and that confidentiality concerns should be addressed by a confidentiality order. TABLE OF CONTENTS INTRODUCTION ..................................................................................... 2 I. THE SCIENCE OF CAUSATION ............................................................. 8 A. Misunderstanding and Misuse of Statistics and Research Methods .............................................................. 9 B. An Ever-Growing Number of Journals and “Pay to Play” .......................................................................... 12 C. Fraud and Questionable Research Practices ..................... 13 D. Pre- and Post-Publication Peer Review Does Not Work ................................................................................. 15 II. THE SO-CALLED RESEARCHERS’ PRIVILEGE .................................. 17 A. There Is No Constitutional Justification for the Researchers’ Privilege................................................. 19 B. There Is No Statutory Basis for a Researchers' Privilege............................................................. 23 C. There Is No Justification for a Common Law Researchers’ Privilege ............................................................ 28 III. SOLUTION: DISCLOSURE ............................................................... 30 INTRODUCTION In 1998, Dr. Andrew Wakefield published the results of a study in The Lancet that linked the administration of the mumps, measles, and rubella (“MMR”) vaccine to the development of autism.1 These 1. See A J Wakefield et. al., Ileal-Lymphoid-Nodular Hyperplasia, NonSpecific Colitis, and Pervasive Developmental Disorder in Children, 351 THE LANCET 637 (Feb. 28, 1998) (subsequently retracted), available at

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startling results shocked parents, who for almost 30 years had relied on this trusted vaccine to virtually eliminate MMR from the Western world.2 Almost immediately, rabid movements began among parents to stop vaccinating their children.3 Some parents feared autism more than diseases such as MMR, which they had never experienced or encountered. Even celebrities like Jenny McCarthy and Charlie Sheen launched crusades against vaccination.4 But there was a problem with Dr. Wakefield’s research conclusions: They were false.5 Dr. Wakefield, a paid consultant for attorneys involved in litigation against vaccine makers, based his conclusions on anecdotal evidence from an examination of only 12 children.6 As an increasing number of studies failed to find a link http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(97)110960/abstract; see also What is Autism?, AUTISM SPEAKS.ORG, http://www.autismspeaks.org/what-autism (last visited Mar. 23, 2015) (stating that autism is a complex brain disorder characterized by difficulties in social interaction, verbal and nonverbal communication, and repetitive behaviors). 2. See Kenneth Haller & Anthony Scalzo, “I’ve Heard Some Things That Scare Me”: Responding with Empathy to Parents’ Fears of Vaccinations, 109 MO. MED. 10 (2012) (arguing that Wakefield’s article provides “already skeptical parents a ‘scientific’ excuse to indulge in popular and centuries-old misgivings about the very idea of vaccination in the public mind”); see also Vaccines (Immunizations), NAT’L LIBR. MED., http://www.nlm.nih.gov/medlineplus/ ency/article/002024.htm (last visited Mar. 23, 2015) (stating that the MMR vaccine contains live, but very weak, forms of the three diseases, which teaches the body to attack each virus and reduces the chance of catching any of the diseases). 3. See Susan Dominus, The Crash and Burn of an Autism Guru, N.Y. TIMES, April 24, 2011, http://www.nytimes.com/2011/04/24/magazine/mag-24Autismt.html (noting that one supporter of Wakefield’s work stated that Wakefield “is Nelson Mandela and Jesus Christ rolled up into one”). 4. See, e.g., Chris Mooney, Why Does the Vaccine/Autism Controversy Live On?, DISCOVER MAG. (May 6, 2009), http://discovermagazine.com/2009/jun/06why-does-vaccine-autism-controversy-live-on/. 5. Steven Novella, The Lancet Retracts Andrew Wakefield’s Article, SCI. BASED MED. (Feb. 3, 2010), http://www.sciencebasedmedicine.org/lancet-retractswakefield-article/ (stating that Wakefield’s study could not be replicated after a decade of research and was retracted by The Lancet). 6. See Lisa A. Rickard, The Anti-Vaccine Movement and a Trial LawyerFunded Climate of Fear, FORBES (Apr. 28, 2014), http://www.forbes.com/ sites/theapothecary/2014/04/28/the-anti-vaccine-movement-and-a-trial-lawyerfunded-climate-of-fear/ (“[T]he article was later retracted by the publisher for being ‘utterly false,’ and the author, Wakefield, was found to have been paid big bucks by plaintiff’s lawyers.”); Retracted Autism Study an ‘Elaborate Fraud,’ British Journal Finds, CNN (Jan. 5, 2011, 8:14 AM), http://www.cnn.com/ 2011/HEALTH/01/05/autism.vaccines/ (“Most of [Wakefield’s] co-authors

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between the administration of the MMR vaccine and the development of autism, the tide turned against the anti-vaccination activists.7 Websites such as jennymccarthybodycount.com claimed to record the number of children who developed illnesses or died because they were not vaccinated.8 McCarthy reportedly lost her job as a co-host on The View9 partially because of her anti-vaccination activities.10 Because published research studies play an important role in the advancement of the world’s healthcare, one might assume that the Wakefield controversy was an isolated incident of the scientific method having gone awry; however, this is not the case.11 An everwithdrew their names from the study in 2004 after learning he had had (sic) been paid by a law firm that intended to sue vaccine manufacturers.”); Vaccine Study’s Author Held Related Patent, Medical Journal Reports, CNN (Jan. 12, 2011, 5:54 AM), available at http://www.cnn.com/2011/HEALTH/01/11/autism.vaccines/ (noting that “Wakefield received more than . . . $674,000 . . . from lawyers trying to build a case against vaccine manufacturers,” one of his twelve research patients’ father was involved in a joint venture with Wakefield, and he disputed holding a patent for “an alternative to the MMR vaccine”); see also Chris Graf et al., Best Practice Guidelines on Publication Ethics: A Publisher’s Perspective, 61 INT’L J CLINICAL PRAC. 1, 8 (Supp. 152, 2007) (stating that conflicts of interest such as patent ownership may skew objectivity and must be disclosed); cf. Frank C. Woodside, III & Allison G. Davis, The Bradford Hill Criteria: The Forgotten Predicate, 35 T. JEFFERSON L. REV. 103, 115 (2013) (discussing research and generally accepted methodology). 7. See Cliff Pinckard, Measles Outbreak in New York Brings Backlash Against Anti-Vaccine Movement (Poll), CLEVELAND.COM (Mar. 19, 2014, 2:43 AM), http://www.cleveland.com/nation/index.ssf/2014/03/measles_outbreak_in_new_yor k_b_1.html. 8. See Anti-Vaccine Body Count, JENNY MCCARTHY BODY COUNT, http://www.jennymccarthybodycount.com/Anti-Vaccine_Body_Count/Home.html (last visited Mar. 22, 2015). 9. The View (ABC broadcasts Sept. 29, 2013 – June 26, 2014). 10. Casey Balch, Jenny McCarthy Fired from The View, Vaccinations Views to Blame, MSTARS NEWS (June 27, 2014, 8:25 AM), http://www.mstarz.com/articles/ 32703/20140627/jenny-mccarthy-fired-view-vaccinations-views-blame.htm. 11. In the words of Yogi Berra, this is “déjà vu all over again.” Wendy Thurm, It’s Like Deja Vu All Over Again. Sort of., SBNATION (June 23, 2012, 1:35 PM), http://www.sbnation.com/2012/6/23/3112502/bryce-harper-clown-question-brobaseball-quotations. See also, e.g., Deutsch Assails Laughlin over Race Measure, JEWISH DAILY BULL. (N.Y.C.), May 7, 1934, at 1 (referencing Dr. Harry H. Laughlin, “who is connected to the Department of Eugenics at the Carnegie Institute,” and his “‘purification of race theory,’ [being] as dangerous and as spurious as the purified ‘Aryan’ race theories advanced by the Nazis, to which it bears suspicious resemblance”); accord BILL BRYSON, ONE SUMMER 369–70

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growing chorus of academicians reports that with an expanding number of academic journals, there is a concomitant increase in the number of articles based on questionable methodology.12 Now, an alarming number of published studies contain improper statistical conclusions, flawed methodology, and results that cannot be replicated.13 Importantly, judges and attorneys, like doctors, rely upon published research to make decisions.14 For example, in medicalmalpractice cases, attorneys use published research to prove and to disprove whether a defendant physician or other healthcare provider has met the standard of care in treating a patient.15 Often, toxic-tort cases hinge upon establishing a causal chain between the chemical exposure at issue and the individual allegedly impacted—a determination that hinges upon scientific research and the science of toxicology.16 Toxicology research relies upon technical evidence (2013) (noting that the Carnegie Institute hired Herbert Spencer Jennings to review Dr. Laughlin’s work, and it was determined that “Laughlin had falsified data, manipulated findings to support racist conclusions, and generally perpetrated scientific fraud for over a quarter of a century”). 12. See Francis S. Collins & Lawrence A. Tabak, NIH Plans to Enhance Reproducibility, 505 NATURE 612, 612 (2014); John P.A. Ioannidis, Why Most Published Research Findings Are False, 2 PLOS MED. 696, 696 (2005), http://www.plosmedicine.org/article/fetchObject.action?uri=info:doi/10.1371/journ al.pmed.0020124&representation=PDF; John Bohannon, Who’s Afraid of Peer Review?, SCI. MAG., Oct. 4, 2013, at 60, 64. 13. See Susan Haack, Peer Review and Publication: Lessons for Lawyers, 36 STETSON L. REV. 789, 799 (2007). 14. See Sean R. Tunis et al., Practical Clinical Trials: Increasing the Value of Clinical Research for Decision Making in Clinical and Health Policy, 290 JAMA 1624, 1624 (2003) (“Decision makers in health care are increasingly interested in using high quality scientific evidence to support clinical and health policy choices; however, the quality of available scientific evidence is often found to be inadequate.”). 15. See Anna C. Mastroianni, Liability, Regulation and Policy in Surgical Innovation: The Cutting Edge of Research and Therapy, 16 HEALTH MATRIX 351, 379 (2006) (“[M]edical standards of care emerge through a complex interplay of professional leaders, journals, peer discussions, and meetings.”); see also BLACK’S LAW DICTIONARY 1624 (10th ed. 2014) (“[S]tandard of care . . . [is] the degree of care that a reasonable person should exercise.”). 16. See Anthony Z. Roisman et al., Preserving Justice: Defending Toxic Tort Litigation, 15 FORDHAM ENVTL. L. REV. 191, 194 (2004) (“[T]oxic tort is a wrongful injury caused by the toxic properties of a substance or product.”); see also id. at 204 (“[T]he task of marshaling the available scientific literature and demonstrating that it is more probable than not that an exposure to a toxic

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gleaned from “epidemiology, animal toxicology, in vitro testing, chemical structural analysis, and case reports” to attempt to determine causation.17 Litigation also relies heavily on scientific and medical literature.18 This reliance has consequences for the judicial system because courts have admitted scientific research as evidence when that research would later be proved wrong.19 In litigation involving the drug Bendectin, 40% of juries found for the plaintiffs—although no plaintiff should have been able to satisfy the burden of causation.20 These verdicts, totaling over a hundred-million dollars, were based on questionable expert opinions and questionable research regarding the safety of Bendectin.21 Later, the manufacturer of Bendectin withdrew the drug from the market because of legal and public-relations concerns.22 Each adverse jury verdict at trial was eventually set aside as a result of post-trial motions or appeal, and thus no final judgments were entered against Bendectin’s manufacturer.23 Finally, after a 30-year absence, Bendectin returned to the U.S. market in 2013 in the form of Diclegis manufactured by Duchesnay.24 substance was one of the causes of a plaintiff’s illness is both daunting and expensive.”). 17. MICHAEL D. GREEN, BENDECTIN AND BIRTH DEFECTS: THE CHALLENGES OF MASS TOXIC SUBSTANCES LITIGATION 27 (1996). 18. See STEPHEN BREYER, Introduction, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 1, 3 (3d ed. 2011) (“Scientific issues permeate the law.”). 19. See MARGARET A. BERGER, The Admissibility of Expert Testimony, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE, supra note 18, at 11, 27 (“[A]nalysts of the more than 200 DNA exonerations to date claim that in more than 50% of the cases, invalid, or improperly conducted, or misleadingly interpreted forensic science contributed to the wrongful convictions.”). 20. GREEN, supra note 17, at 328; see also id. at 90 (stating that Bendectin was created to treat morning sickness in pregnant women and consists of Vitamin B6 and an antihistamine, doxylamine succinate); Doxylamine, VICKS, http://www.vicks.com/products/safety-information/active-ingredients/doxylamine/ (last visited Mar. 25, 2015) (“Doxylamine succinate is a powerful antihistamine used in products such as nighttime cold medicines.”). 21. See GREEN, supra note 17, at 301–06. 22. Id. at 180. 23. Id. at 335 (“[N]o plaintiffs have recovered money pursuant to judgment, and only a handful of trivial nuisance settlements have resulted in any transfers.”). 24. Bendectin History, BENDECTIN, http://www.bendectin.com/en/ (last visited Mar. 3, 2015) (“Merrell Dow Pharmaceuticals ceased production of Bendectin worldwide in 1983, as their soaring legal and liability insurance costs eclipsed sales.”); id. (“On April 8, 2013 the US Food and Drug Administration . . . approved

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Yet courts continue to admit opinions based on questionable research into evidence.25 Sometimes the authors of published studies or counsel relying on these researchers’ work have attempted to place barriers in the way of academicians or counsel who wish to challenge the validity of the published studies26 and their underlying data.27 These barriers originate from a misunderstanding, or misuse, of the concept of academic freedom—a litigation strategy that asserts the existence of the so-called “researchers’ privilege,” also known as “academic privilege,” “academic freedom privilege,” or “the research scholar’s privilege”—as well as the improper application of the Freedom of Information Act (“FOIA”).28 These challenges create a legal environment where opinions based on the published results of flawed research are admitted into evidence without providing opposing parties the opportunity to develop the facts necessary to assess the opinion’s validity. This admission of uninvestigated evidence creates the potential for unjust results. Misconceptions in academia and in society at large about the assumed ability of researchers to withhold information based on a putative ability to keep research data confidential have led to confusion. Researchers promise study participants confidentially that is not legally justified or enforceable. One example is the recent scandal involving Boston College’s Oral History Project about the

Diclegis . . . to treat pregnant women experiencing nausea and vomiting . . . [which] contains the same active ingredients as Bendectin.”). 25. See, e.g., Nathan A. Schachtman, Misplaced Reliance on Peer Review to Separate Valid Science from Nonsense, SCHACTMAN L. BLOG (Aug. 14, 2011, 8:11 AM), http:schachtmanlaw.com/misplaced-reliance-on-peer-review-to-separatevalid-science-from-nonsense/ (providing examples of litigation where the validity of the underlying research was at issue, such as litigation involving phenylpropanolamine, Viagra, Accutane, and silicone breast implants). 26. See, e.g., Eric G. Campbell et al., Data Withholding in Academic Genetics: Evidence from a National Survey, 287 JAMA 473, 473 (2002) (concerning geneticists, “ten percent of all postpublication requests for additional information [are] denied”). 27. See, e.g., Dow Chem. Co. v. Allen, 672 F.2d 1262, 1276 (7th Cir. 1982) (refusing to order subpoenas of research data). 28. See, e.g., United States v. Trs. of Bos. Coll., 831 F. Supp. 2d 435, 453 (D. Mass. 2011) (academic privilege); Wilkinson v. FBI, 111 F.R.D. 432, 440 (C.D. Cal. 1986) (“Academic Freedom and the Researcher’s Privilege”); In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 225 (2d Cir. 1984) (scholar’s privilege); In re Am. Tobacco Co., 880 F.2d 1520, 1528 (2d Cir. 1989) (research scholar’s privilege).

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conflict in Northern Ireland.29 In this study, researchers promised study participants that their tape-recorded interviews would be confidential without realizing that such promises were not legally enforceable.30 Eventually, Boston College had to turn over the tape recordings to British authorities, in violation of the promises made to the study participants, and the government used the tapes to justify the arrest of Sinn Féin leader Gerry Adams.31 Scholars inaccurately and dangerously believe that they have a right to withhold their data by claiming that its production conflicts with their academic freedom. This Article focuses on the validity of a researcher’s claim to withhold research data under the so-called “researchers’ privilege.” Part I delineates the reasons why it is extremely difficult to evaluate published research findings without access to the researchers’ underlying information. Part II analyzes the law that governs researchers’ ability to withhold records and data based on the so-called “researchers’ privilege.” Finally, Part III explains why courts should favor the disclosure of research data and address confidentiality concerns using a protective order. I. THE SCIENCE OF CAUSATION The scientific method demands that valid experimental results can be replicated by other researchers.32 But now more than ever, few experimental results can be replicated.33 For example, researchers from a leading pharmaceutical company attempted to reproduce the results from 53 of the most landmark cancer-research studies.34 Although the researchers followed the same procedures used in the original research, they were only able to replicate the results in 6 of the 53 published papers.35 In other words, scientists could confirm 29. See, e.g., Peter Schworm, BC Reflects on Missteps in Northern Ireland Project, BOSTON GLOBE, May 18, 2014, http://www.bostonglobe.com/ metro/2014/05/17/controversial-project-stumbles-end-reflects-where-things-wentwrong/Pp7b9cT3CDZ0Ltb3uuUPPI/story.html. 30. See id. 31. See id. 32. See generally Arturo Casadevall & Ferric C. Fang, Editorial, Reproducible Science, 78 INFECTION AND IMMUNITY 4972 (2010) (noting that reproducibility and replicability are not the same). 33. See Ioannidis, supra note 12, at 696. 34. C. Glenn Begley & Lee M. Ellis, Commentary, Raise Standards for Preclinical Cancer Research, 483 NATURE 531, 532 (2012). 35. Id.

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the results in only 11% of these cancer-research papers.36 This low percentage of confirmed results is concerning because “[r]esearch findings that do not replicate are worse than fairy tales; with fairy tales the reader is at least aware that the work is fictional.”37 Reasons for this crisis in academic research include (1) researchers’ inability to understand increasingly sophisticated statistics and research methods, (2) the growing business of research that is fueled by private-sector money and expert-witness fees, and (3) the proliferation of “vanity press” journals.38 Finally, mounting evidence shows that certain researchers engage in questionable research practices that may constitute fraud. A.

Misunderstanding and Misuse of Statistics and Research Methods

Researchers do not necessarily have adequate training in research methods and statistics just because they possess advanced degrees. Moreover, some statistical errors in research publications transcend mere misunderstanding and instead show that researchers manipulate statistical methods to obtain the desired results.39 Psychologist Uri Simonsohn calls this phenomena “P-hacking,” and others refer to it as “data-dredging, snooping, fishing, significance-chasing and double-dipping.”40 Statistics defines the P-value as “the probability that an observed positive association could result from random error even if no association were in fact present.”41 For example, suppose that in an epidemiology study investigating the potential association between the administration of vaccines and the development of side effects, the P-value is 0.05. This P-value indicates that even if the vaccine had no effect, a positive association could be obtained in 5% 36. Id. 37. Eric-Jan Wagenmakers et al., An Agenda for Purely Confirmatory Research, 7 PERSP. ON PSYCHOL. SCI. 632, 633 (2012). 38. Dave Bricker, Self-Publishing & Vanity Publishing: Confuse Them and Pay the Price, THE WORLD’S GREATEST BOOK (Feb. 4, 2013), http://theworldsgreatestbook.com/self-publishing-vanity-publishing/ (“[Y]ou pay someone to be your publisher.”). 39. See Regina Nuzzo, Statistical Errors: P Values, the ‘Gold Standard’ of Statistical Validity, Are Not as Reliable as Many Scientists Assume, 504 NATURE 150, 152 (2014). 40. Id. (“‘P-hacking,’ says Simonsohn, ‘is trying multiple things until you get the desired result.’”). 41. MICHAEL D. GREEN ET AL., Reference Guide on Epidemiology, in REFERENCE MANUAL ON SCIENTIFIC EVIDENCE, supra note 18, at 549, 576.

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of the studies due to random-sampling error.42 Unfortunately, researchers can manipulate this relatively straightforward statistic. Consider the following hypothetical situation. Researchers conduct an epidemiological study to determine if there is an association between exposure to substance A and the development of side effect X. Further assume that, although not actually studied, mining the underlying data reveals a statistically significant association (at a P value of less than 0.05) between exposure to substance A and the development of side effect Y. While a researcher may appropriately mine data to develop hypotheses, scientific standards would prohibit the researcher from claiming that a statistically significant association has been shown between the exposure to substance A and side effect Y. Making such a claim infers that the hypothesis was studied and confirmed, when in fact the researcher has only generated a hypothesis that requires separate study. But the pressure to engage in such behavior is great when it will result in a published paper that could help a researcher achieve tenure and gain prestige.43 Exacerbating the problem of the manipulation of statistical methods, academia generally exhibits a bias toward the publication of positive, as opposed to negative, results.44 For example, a study that concludes that Drug A cures cancer is more likely to be published

42. See Nuzzo, supra note 39, at 152 (“[M]any published psychology papers report P values that cluster suspiciously around 0.05, just as would be expected if researchers fished for significant P values until they found one.”). 43. See, e.g., Eve Heafey, Abstract, Public Access to Science: The New Policy of the National Institutes of Health in Light of Copyright Protections in National and International Law, 15 UCLA J.L. & TECH. 1, 6 (2011) (“[S]cientists’ careers depend largely on journals, as funding is granted partly based on publications and universities often require publication in high impact journals for promotion and tenure.”). “[A]uthors are under pressure to publish for career advancement and funding applications.” Id. at 11. 44. See Unreliable Research: Trouble at the Lab, ECONOMIST (Oct. 19, 2013), http://www.economist.com/news/briefing/21588057-scientists-think-science-selfcorrecting-alarming-degree-it-not-trouble/ (discussing that funding duplicative studies is not a priority). But see Andrew Bissette, Unlikely Results?, BEHIND NMR LINES BLOG (Nov. 9, 2013), http://behindnmrlines.blogspot.com/2013/11/unlikelyresults.html#links (“[A]ll scientists operate by testing well-defined hypothesis one by one and analysing the results through statistics, publishing only those with p<0.05. This kind of thought experiment can usefully explain the crisis of reproducibility in certain disciplines which do rely heavily upon p values for publication.”).

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than a study that concludes that Drug B does not cure cancer.45 Thus, papers reporting negative results comprise merely 10% to 30% of published research.46 This positive-results bias has created the tendency that “[a]uthors are more likely to submit, and editors accept, positive rather than null results.”47 Additionally, the results most likely to be published are the most surprising and counterintuitive, and thus, the most likely to be wrong.48 In the July 2, 2014, edition of the Journal of the American Medical Association, the editors introduced a new section of articles describing scientific principles that a clinician must know to understand research articles.49 In an editorial explaining why such a section was necessary, Edward H. Livingston pointed out, “Because relatively little emphasis is placed in medical school on research methods and statistics, clinicians may have never learned enough about these topics to properly understand current research articles.”50 Livingston implied that clinicians who author articles may not have (1) received sufficient training in the procedures of properly performed research; (2) used the appropriate methodology in collecting and analyzing data from such research; or (3) correctly delineated the background methodology, results, and conclusions in the article that the clinician published. Some commentators contend that the current culture of academic publishing rewards questionable research practices and, by its very structure, prevents the detection of such practices.51 In a perfect 45. See ECONOMIST, supra note 44 (“[R]esearchers and the journals in which they publish are not very interested in negative results. They prefer to accentuate the positive, and thus the error-prone.”). 46. Id. 47. David L. Sackett, Bias in Analytic Research, 32 J. CHRONIC DISEASES 51, 60 (1979). 48. See, e.g., Freek Vermeulen, Publication Bias (or, Why You Can’t Trust Any of the Research You Read), FORBES (Jan. 6, 2012, 2:33 PM), http://www.forbes.com/sites/freekvermeulen/2012/01/06/publication-bias-or-whyyou-cant-trust-any-of-the-research-you-read/ (declaring that “journals will only publish novel, interesting findings,” which increases the likelihood that “researchers only bother to write seemingly intriguing counterintuitive findings”). 49. See Edward H. Livingston, Introducing the JAMA Guide to Statistics and Methods, 312 JAMA 35 (2014). 50. Id. 51. See, e.g., Ivan Oransky, “The Chrysalis Effect: How Ugly Initial Results Metamorphosize into Beautiful Articles,” RETRACTION WATCH BLOG (Mar. 25, 2014, 2:10 PM), http://retractionwatch.com/2014/03/25/the-chrysalis-effect-howugly-initial-results-metamorphosize-into-beautiful-articles/#more-19411

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world, it should not matter who pays for research; in reality, the sources funding researchers sometimes influence the outcome of research.52 Such funding can come from pharmaceutical companies53 or plaintiffs’ lawyers, as in the case of Dr. Wakefield.54 Ultimately, it is impossible to discount the possible adverse consequences that outside funding may have on academic research. B.

An Ever-Growing Number of Journals and “Pay to Play”

Now, any article purportedly setting forth the results of a study can be published—even when no actual research was performed. In a recent test, computer scientist Cyril Labbé developed a program to create faux scientific research papers.55 This program strung together a bunch of sophisticated-sounding words in almost incoherent sentences.56 The pseudo-scientific papers had titles “such as ‘Application and Research of Smalltalk Harnessing Based on GameTheoretic Symmetries’; ‘An Evaluation of E-Business with Fin’; and ‘Simulating Flip-Flop Gates Using Peer-to-Peer Methodologies.’”57 Although not a single one of these papers had any scientific basis, 120 of them were published.58 The fraud was not discovered until Labbé informed the journals of the ruse.59

(discussing Ernest Hugh O’Boyle Jr. et al., The Chrysalis Effect: How Ugly Initial Results Metamorphosize into Beautiful Articles, J. MGMT., March 19, 2014, at 25 (“If we cannot self-police by establishing and enforcing best practices, then those external stakeholders that provide funding (e.g., state governments, federal grant agencies, private individuals and organizations) may reduce or withdraw their support.”)). 52. See Bodil Als-Nielson et al., Association of Funding and Conclusions in Randomized Drug Trials: A Reflection of Treatment Effect or Adverse Events?, 290 JAMA 921, 926–27 (2003) (“[T]he association between funding and conclusions might reflect a biased interpretation of the overall trial results. This potential bias could be due to financial conflicts of interest.”). 53. See id. 54. See CNN, Vaccine Study’s Author Held Related Patent, Medical Journal Reports, supra note 6. 55. James A. Foley, Scholarly Journals Accepted 120 Fake Research Papers Generated by Computer Program, NATURE WORLD NEWS (Mar. 1, 2014, 11:31 AM), http://www.natureworldnews.com/articles/6217/20140301/scholarlyjournals-accepted-120-fake-research-papers-generated-by-computer-program.htm. 56. Id. 57. Id. 58. Id. 59. Id.

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An investigation by the journal Science found that some seemingly respected journals will publish virtually anything for a fee.60 At the request of Science, author John Bohannon created a spurious cancer-research paper that appeared legitimate but was actually replete with errors and impossible claims.61 Bohannon then submitted the paper to journals that required the payment of a fee, some as high as $3,100, as a condition of publication.62 Ultimately, 157 of the pay-to-publish journals accepted the faux article and 98 rejected it—an acceptance rate of 61% for a sham paper based on pseudo-science.63 C.

Fraud and Questionable Research Practices

While few researchers attempt to publish gibberish, these experiments demonstrate how easy it is to publish research that is faux, pseudo-scientific, fraudulent, or merely flawed. Researchers today feel enormous pressure to publish.64 Imagine the researcher’s frustration when six months spent conducting research delivers results refuting the investigated hypothesis. The researcher now faces the likely consequence that no major journal will publish his or her results. In the publish-or-perish world of academic research, the honest researcher is at a distinct disadvantage. Given the pressures of the academic and for-profit worlds, there are many significant instances where journals later withdrew published articles because someone uncovered bogus data or 60. Bohannon, supra note 12, at 61. 61. Id. at 62. 62. Id. at 64–65. See generally Guide for Authors, Social Science & Medicine, ELSEVIER, http://www.elsevier.com/journals/social-science-medicine/02779536/guide-for-authors (last visited Mar. 6, 2015) (describing the pricing policy for open-access publication). 63. Bohannon, supra note 12, at 63. 64. See, e.g., David Colquhoun, Publish-or-Perish: Peer Review and the Corruption of Science, THE GUARDIAN, Sept. 5, 2011, http://www.theguardian.com/science/2011/sep/05/publish-perish-peer-reviewscience. Not long ago, Imperial College’s medicine department were told that their “productivity” target for publications was to “publish three papers per annum including one in a prestigious journal with an impact factor of at least five.” The effect of instructions like that is to reduce the quality of science and to demoralise the victims of this sort of mismanagement. Id.

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problems with the underlying research,65 generally referred to as “academic fraud” or “questionable research practices.”66 Surveys regarding the behavior of researchers found that 14% observed their colleagues engaging in “fabrication, falsification and modification” of research data.67 Another 72% of researchers reported observing other questionable research practices.68 The growth of fraudulent research has led some to call for criminal charges for fraud in scientific research.69 While fraud in other walks of life has serious consequences, academic fraud is difficult to detect and rarely results in any negative consequences for the perpetrator, even if discovered.70 When fraud is discovered, it is often handled internally by academic institutions and is generally swept under the rug.71 In the rare case where research fraud is detected, the consequences can be too little, too late, as was the case with Dr. William McBride and his research concerning Bendectin.72 McBride was heralded as a national hero in his homeland of Australia for his co-discovery of the teratogenicity of the drug thalidomide.73 But while McBride testified in the Bendectin litigation as a plaintiff’s expert witness, he was also being investigated for academic fraud for 65. Virginia Gewin, Retractions: A Clean Slate, 507 NATURE 389, 389 (2014) (“[In 2013], scientific journals retracted roughly 500 papers (of more than a million published), compared with fewer than 50 per year in the early 2000’s.”). 66. See generally Richard Epstein, Academic Fraud Today: Its Social Causes and Institutional Responses, 21 STAN. L. & POL’Y REV. 135 (2010) (defining academic and scientific fraud, examining procedures that should be used to examine cases of suspected fraud, and discussing procedures that can be used to identify the extent of fraud after the fraud has been discovered); Leslie K. John et. al., Measuring the Prevalence of Questionable Research Practices with Incentives for Truth Telling, 23 PSYCHOL. SCI. 524 (2012) (discussing academic fraud and questionable research practices). 67. Daniele Fanelli, How Many Scientists Fabricate and Falsify Research? A Systematic Review and Meta-Analysis of Survey Data, PLOS ONE (May 29, 2009), http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0005738. 68. Id. 69. Helen Branswell, Should Research Fraud Be Treated as a Crime? Toronto Expert Says Yes, THE HAMILTON SPECTATOR, July 15, 2014, http://www.thespec.com/news-story/4633340-should-research-fraud-be-treated-asa-crime-toronto-expert-say-yes/. 70. See id. 71. See id. 72. See GREEN, supra note 17, at 274. 73. Id.

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falsifying data related to scopolamine.74 Later, one of McBride’s collaborators accused him of falsifying data and “cooking the books” to prove a connection between Bendectin and birth defects.75 After years of investigation, McBride was eventually stripped of his medical license for research misconduct, but not before many years of successful work as an expert witness in drug litigation.76 D.

Pre- and Post-Publication Peer Review Does Not Work

“Peer review” is “a process by which scholarly work (such as a paper or a research proposal) is checked by a group of experts in the same field to make sure it meets the necessary standards before it is published or accepted.”77 A common misconception is that the peerreview process required by some journals will detect poor-quality research.78 But in a 1998 study, where peer reviewers were sent articles containing deliberate mistakes, few mistakes were found.79 Pressure to publish has put the peer-review system under “severe strain.”80 This pressure encompasses “the explosion of scientific and medical publications; the increasing financial influence of large drug companies on the medical journals; the pressures on young scientists to get grants and to publish; the temptations to celebrity-seeking; the burgeoning expert-witness business; and so on.”81

74. See id. 75. See Adam Spencer, The Insider, AUSTRALIAN STORY (Feb. 22, 2001), http://www.abc.net.au/austory/transcripts/s248519.htm. This article refers to Bendectin as “Debonex,” the name used to market the drug outside of the United States. 76. See GREEN, supra note 17, at 274. 77. Peer Review Definition, MERRIAM-WEBSTER, http://www.merriamwebster.com/dictionary/peer review (last visited Mar. 19, 2015). 78. According to a recent decision by a California court, “[P]ublished academic studies are exposed to extensive peer review and public scrutiny that assure objectivity.” Humane Soc’y of the U.S. v. Super. Ct., 155 Cal. Rptr. 3d 93, 122 (Ct. App. 2013). 79. Sara Schroter et al., What Errors Do Peer Reviewers Detect, and Does Training Improve Their Ability to Detect Them?, 101 J. ROYAL SOC’Y MED. 507, 508 (2008) (Eng.) (citing Fiona Godlee et al., Effect on the Quality of Peer Review of Blinding Reviewers and Asking Them to Sign Their Reports: A Randomized Controlled Trial, 280 JAMA 237, 237–40 (1998)). 80. Haack, supra note 13, at 799. 81. Id. (citing SUSAN HAACK, DEFENDING SCIENCE–WITHIN REASON: BETWEEN SCIENTISM AND CYNICISM 27–29, 107–09 (2003)).

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The peer-review process can only detect the most obvious fraud and must also rely on the integrity of authors. And peer reviewers do not have the time or ability to replicate each researcher’s study to check its validity.82 The best expected result is that a peer reviewer will spot conceptual flaws in a research paper—but such flaws are not always readily apparent.83 Further, the reader of a published article has no way to evaluate the qualifications of the peer reviewers, if any, because their identities are never disclosed.84 Indeed, given the large number of journals, some journals will use any peer reviewer who becomes available to them, no matter how little or limited the reviewer’s peer-reviewing experience may be.85 The mere fact that there are a large number of journals in and of itself undermines the validity of the peer-review system. Generally, authors submit their articles to the most prestigious journal they believe may publish their article, but the prestigious journals may reject up to 90% of the manuscripts submitted.86 And many articles are rejected multiple times by a myriad of journals, each one ranking lower than the previous one, before being accepted for publication.87 Thus, the existence of a great number of journals ensures that virtually any research paper can find a publisher—even if previously rejected by multiple prior journals because of methodological errors.88 Between 1997 and 2012, the number of published research

82. Id. at 800–01. 83. Id. at 808 (“[T]he fact that work has passed pre-publication peer review is no guarantee that it is not flawed or even fraudulent . . . .”). 84. See Solarex Corp. v. Arco Solar, Inc., 121 F.R.D. 163, 163–64, (E.D.N.Y. 1988); In re Yasmin & Yaz (Dropspirenone) Mktg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100-DRH-PMF, 2011 WL 5547133, at *3 (S.D. Ill. Nov. 15, 2011) (protecting the identity of peer reviewers, even from a subpoena). 85. See Latha Chandran & Virginia Niebuhr, Peer Review of Manuscripts: An Online Training Module, MEDEDPORTAL (June 14, 2013), http://www.medeportal.org/publication/9444. 86. See Eugenie Samuel Reich, The Golden Club, 502 NATURE 291, 291 (2013). 87. See Michael Hoenig, “Unreliable” Articles: More on Peer Review’s Frailties, N.Y. L.J. (June 9, 2014), available at http://www.herzfeldrubin.com/publ_complexlitigation_20140609.htm (according to one commentator, even when rejected by a journal with a low acceptance rate, most rejected research papers are accepted by lower-ranked publications). 88. See Drummond Rennie, Guarding the Guardians: A Conference on Editorial Peer Review, 256 JAMA 2391 (1986).

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articles increased by 87%,89 suggesting that more and more researchers are finding a place to publish. Some argue that any possible decline in the effectiveness of the peer-review process is offset by an increase in post-publication peer review. Post-publication peer review is the evaluation of articles by readers who offer criticism in letters to the editor or other feedback. In a well-known instance of post-publication peer review, graduate student Thomas Herndon was required to replicate a prominent economic study as a project in one of his classes.90 Herndon expected to easily replicate the study, but instead he found a number of errors that put the study’s findings in question. Herndon’s discovery made news and landed him an interview on The Colbert Report.91 Post-publication peer review only works well for between .01% and 1% of published research articles.92 In the words of one commentator, “The vast majority of papers don’t receive any postpublication ‘review’ at all, because relatively few people read them and the people who do read them mostly just read the abstract or skim.”93 Thus, only the most elite papers receive post-publication peer review because those are the only papers that are read with enough frequency for critical commentary. For the literally millions of other papers published in a given year that are not widely read, there is no meaningful post-publication peer review.94 II. THE SO-CALLED RESEARCHERS’ PRIVILEGE In addition to the forces challenging the integrity of the academic research community, a legal trend also enables flawed research to 89. See id. 90. See Joe Weisenthal, Thomas Herndon’s Professors Almost Didn’t Let Him Start the Paper that Shook the World Austerity Movement, BUSINESS INSIDER (Apr. 24, 2013, 7:01 PM), http://www.businessinsider.com/thomas-herndon-replicationexercise-2013-4. 91. The Colbert Report: Austerity’s Spreadsheet Error (Comedy Central broadcast Apr. 23, 2013). 92. See Jeremy Fox, Post-Publication Review Is Here To Stay—For the Scientific 1%, DYNAMIC ECOLOGY (Mar. 20, 2014), http://dynamicecology.wordpress.com/2014/03/20/post-publication-review-comesof-age-for-the-scientific-one-percent/. 93. Id. See also Farhad Manjoo, You Won’t Finish This Article, SLATE (June 6, 2013), http://www.slate.com/articles/technology/technology/2013/06/how_people_ read_online_why_you_won_t_finish_this_article.html (demonstrating that few people finish the articles that they begin to read online). 94. See Unreliable Research: Trouble at the Lab, supra note 44.

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remain hidden, rather than making research more transparent and easier to evaluate.95 Some assert the existence of a so-called “researchers’ privilege” that protects the raw data and materials of a third-party researcher from disclosure.96 Some consider this privilege a subcategory of the more general “academic privilege” or the “academic freedom privilege,”97 and it is similar to other supposed privileges for academics such as the “archival” privilege.98 The researcher—not the plaintiff or the defendant—raises the privilege when a party to a lawsuit seeks the researcher’s files and data.99 The privilege is not raised by a party to the lawsuit.100 This request for the

95. See Schachtman, supra note 25. Major litigation that involved peerreviewed research that did not hold up under the scrutiny of experts included Phenylpropanolamine and stroke litigation, Viagra and ophthalmic events litigation, MMR vaccine and autism litigation, Accutane and suicide litigation, and silicone and connective-tissue-disease litigation. Id. 96. See generally Robert M. O’Neil, A Researcher’s Privilege: Does Any Hope Remain?, 59 LAW & CONTEMP. PROBS. 35 (1996) (arguing in favor of the privilege). The “researcher’s” privilege is also referred to as the “scholar’s” privilege, and sometimes the general term “academic privilege” is used to refer to the researcher’s privilege. 97. Univ. of Pa. v. EEOC, 493 U.S. 182, 198 (1990). The case concerned access to academic tenure peer-review data in an employment-discrimination context. The Supreme Court held that there was no common-law privilege to prevent the disclosure of peer review data. Further, the Court found the university’s “reliance on the so-called academic-freedom cases is somewhat misplaced.” Id. at 183. The Court noted that other cases involving academic freedom centered on government effort to control speech and declined to define “the precise contours of any academic-freedom right against governmental attempts to influence the content of academic speech through the selection of faculty or by other means . . . .” Id. at 198. 98. Wilkinson v. FBI, 111 F.R.D. 432, 437–39 (C.D. Cal. 1986) (rejecting the existence of an “archival” privilege for historians). 99. Univ. of Pa., 493 U.S. at 198. 100. Smith v. Dow Chem. Co., 173 F.R.D. 54, 58 (W.D.N.Y. 1997) (rejecting an attempt to claim the researcher’s privilege by a party to the litigation because “plaintiff’s document requests are directed at the defendants and seek only those documents pertaining to the studies that are in the possession and control of the defendants”).

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researcher’s data may be via subpoena101 or by a FOIA request if the researcher is a government employee.102 The existence of a researchers’ privilege, however, violates the principle that “the public has a right to every person’s evidence, absent a valid claim of constitutional, common law, or statutory privilege.”103 Currently, neither the common law nor any explicit federal or state statute protects research data.104 Despite some ambiguity in case law, the Constitution offers no justification for withholding research data; indeed, the Supreme Court has even denied the existence of an “academic privilege.”105 Simply put, given the absence of a common law or statutory researchers’ privilege, the public has a right to a researcher’s data when such data is at issue in a lawsuit. Despite recent calls for the creation of such a privilege,106 the time has come to bury the researchers’ privilege once and for all. A.

There Is No Constitutional Justification for the Researchers’ Privilege

Besides the North Korean government107 and a Harvard undergraduate,108 few seriously challenge educators’ entitlement to 101. See In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223, 224 (2d Cir. 1984) (discussing a claim of privilege where the government sought research data through a subpoena). 102. See Burka v. U.S. Dep’t of Health & Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996) (discussing research data as an agency record that was sought through a FOIA request). 103. Wilkinson, 111 F.R.D. at 438 (citing United States v. Nixon, 418 U.S. 683, 709 (1974); Branzburg v. Hayes, 408 U.S. 665, 688 (1972)). 104. See Robert H. McLaughlin, From the Field to the Courthouse: Should Social Science Research Be Privileged?, 24 LAW & SOC. INQUIRY 927, 960–61 (1999). 105. See Univ. of Pa. v. EEOC, 493 U.S. 182, 197–99 (1990) (explaining that the “academic freedom” cases applied where the government tried to control the content of speech and declining to extend the privilege to cases involving confidential peer-review materials). 106. Katherine Adams, Comment, The Tension Between Research Ethics and Legal Ethics: Using Journalist’s Privilege State Statutes as a Model for a Proposed Researcher’s Privilege, 27 GEO. J. LEGAL ETHICS 335, 351 (2014). 107. U.S. DEP’T OF STATE, DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA 2013 HUMAN RIGHTS REPORT 12 (2013) (stating that the government of North Korea restricts academic freedom, including controlling course curriculums and limiting academic travel), available at http://www.state.gov/documents/organization/ 220414.pdf. 108. One student writer in The Harvard Crimson does suggest replacing the

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academic freedom, but the term “academic freedom” is not clearly defined.109 On a basic level, the concept of academic freedom arises from a concern that government action against professors “inevitably tends to check the ardor and fearlessness of scholars, qualities at once so fragile and so indispensable for fruitful academic labor.”110 According to Justice Frankfurter, the “four essential academic freedoms” may be “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”111 Some would propose creating a fifth academic privilege: First Amendment protection of a researcher’s information and sources.112 Unlike the case of a party litigant trying to obtain a researcher’s records to defend against litigation, the modern jurisprudence of academic freedom responds largely to the heavy-handed McCarthyera persecutions of leftist professors.113 The application of academic concept of academic freedom with “academic justice.” Sandra Y.L. Korn, The Doctrine of Academic Freedom: Let’s Give Up on Academic Freedom in Favor of Academic Justice, THE HARVARD CRIMSON, Feb. 18, 2014, http://www.thecrimson.com/column/the-red-line/article/2014/2/18/academicfreedom-justice/?page=1. According to Korn, “When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue.” Id. Of course, Korn might have a different opinion of the value of academic freedom if “justice” and “oppression” were defined by someone other than herself. 109. See Walter P. Metzger, Profession and Constitution: Two Definitions of Academic Freedom in America, 66 TEX. L. REV. 1265, 1320 (1988) (concluding that there is a deep difference between the professional and constitutional versions of academic freedom). 110. Sweezy v. New Hampshire, 354 U.S. 234, 262 (1957) (Frankfurter, J., concurring). 111. Id. at 263 (quoting CONFERENCE OF REPRESENTATIVES OF THE UNIV. OF CAPE TOWN AND THE UNIV. OF THE WITWATERSRAND, THE OPEN UNIVERSITIES IN SOUTH AFRICA 11–12 (1957)). 112. Frank Murray, Note, Boston College’s Defense of the Belfast Project: A Renewed Call for a Researcher’s Privilege to Protect Academia, 39 J.C. & U.L. 659, 678–79 (2013). 113. The seminal case for the concept of academic freedom is Sweezy v. New Hampshire, 354 U.S. 234 (1957). The Supreme Court in Sweezy considered the plight of economics professor Dr. Paul M. Sweezy. In 1951, New Hampshire enacted a law designed to regulate subversive activities, particularly alleged communists. Id. at 236. The law made “subversive persons” ineligible for employment by the state government, including employment as a professor at a public university. Id. Sweezy had delivered lectures at the University of New Hampshire that were alleged to have contained pro-communist themes. Id. at 243– 44. As a result, he became the focus of an investigation by the New Hampshire Attorney General. During the investigation, Sweezy refused to answer multiple

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freedom to the researchers’ privilege is less clear-cut than a law forbidding a university from hiring “subversive persons.”114 The Supreme Court of the United States noted that other cases involving academic freedom centered on government restrictions on speech when the Court refused to create an academic-freedom privilege.115 And the United States District Court for the Eastern District of Michigan stated: The protection of the first amendment is designed to afford the right to write and to speak. It does not give a right to withdraw material written and published from public scrutiny, nor does it give a right to refuse to disclose facts discovered as a result of observations that are relevant in making a judgment as to the correctness of the researcher’s published conclusions.116 Courts have had to weigh the value of privacy in conducting research against the value of the data produced by that research to the fair and accurate administration of justice. Not surprisingly, courts usually side with the administration of justice in the interest of determining the accuracy of a researcher’s conclusions. Rejecting the researchers’ privilege, the United States District Court for the Eastern District of Michigan expressed concern about “a person who has become a public figure as a result of a research project yet wants to remain essentially anonymous so far as the administration of justice is concerned.”117 The court perceptively noted, “The value of the questions about his political beliefs and his involvement with communist organizations. See id. The court found him in contempt and ordered him to jail. Id. at 244–45. Sweezy appealed to the U.S. Supreme Court after the New Hampshire Supreme Court affirmed that he was in contempt. Id. at 235–36. A plurality of the Supreme Court held that the contempt finding was improper. Id. at 255. Four justices based their reasoning on due process, id. at 254–55, while Justices Frankfurter and Harlan based their reasoning on First Amendment principles, specifically the new constitutional concept of “academic freedom,” id. at 260–67 (Frankfurter, J., concurring). 114. Id. at 236 (plurality opinion). 115. Univ. of Pa. v. EEOC, 493 U.S. 182, 198 (3rd Cir. 1990). 116. Wright v. Jeep Corp., 547 F. Supp. 871, 875 (E.D. Mich. 1982). 117. Id. at 872. In this case, Jeep sought access to Dr. Richard Snyder’s data. Snyder was a professor and research scientist at the Highway Safety Institute of the University of Michigan and was the principal author of the 1980, 152-page report, On-Road Crash Experience of Utility Vehicles, published by the institute. Id. at 872–73. Snyder’s study concluded that the Jeep CJ-5 experienced a

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conclusions [of a researcher] turns on the quality of the data and the methods used by the researcher in his analysis of that data as well as the skill and perception of the researcher.”118 Thus, “if the conclusions or end product of a research effort is to be fairly tested, the underlying data must be available to others equally skilled and perceptive.”119 In Dow Chemical Co. v. Allen,120 the United States Court of Appeals for the Seventh Circuit conflated the constitutional doctrine of academic freedom with the researchers’ privilege to prevent disclosure of a university researcher’s “notes, reports, working papers, and raw data relating to on-going, incomplete animal toxicity studies . . . .”121 In this case, the EPA issued an emergency order suspending the use of two herbicides manufactured by Dow. As part of the administrative appeal process, Dow sought to subpoena the “notes, reports, working papers, and raw data relating to on-going, incomplete animal toxicity studies” of researchers from the University of Wisconsin who conducted research on the two herbicides at issue and upon which the EPA based its suspension order. 122 The Seventh Circuit upheld the district court’s refusal to enforce the subpoena, partially on academic freedom grounds. According to the court: [E]nforcement of the subpoenas would leave the researchers with the knowledge throughout continuation of their studies that the fruits of their labors had been appropriated by and were being scrutinized by a not-unbiased third party whose interests were arguably antithetical to theirs. It is not difficult to imagine that that realization might well be both unnerving and discouraging.123

disproportionately high roll-over rate in accidents. Id. Jeep wanted access to Dr. Snyder’s “research data, memoranda, drafts, correspondence, lab notes, reports, calculations” and other documents relating to his study for use in Jeep’s defense of a personal injury lawsuit. Id. 118. Id. at 874. 119. Id. 120. 672 F.2d 1262 (7th Cir. 1982). 121. Id. at 1266. 122. Id. 123. Id. at 1276.

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Because of this concern, the court concluded that “enforcement of the subpoenas carries the potential for chilling the exercise of First Amendment rights.”124 In his concurrence, however, Judge Frank Pell had a different view. According to Judge Pell, the dispute was “merely a matter of recording accurately [because a] researcher’s reputation perhaps deserves to be subject to some questioning if he or she cannot accurately observe and record specific factual matters.”125 Indeed, Judge Pell described the court’s academic-freedom concerns more accurately as concerns about how an unfavorable critique affects a researcher’s reputation. Additionally, the court and the public would benefit from permitting disclosure of errors found in research, particularly in the context of a federal safety hearing regarding herbicides.126 Acknowledging a “researchers’ privilege” would also have the unusual effect of giving researchers greater ability to protect their sources and data than even some journalists have.127 For instance, in Branzburg v. Hayes,128 the Supreme Court rejected the First Amendment as a defense for reporters who were called to testify before a grand jury.129 And the Court applied Branzburg in the civillaw context when it declined to create an academic-freedom privilege where it was unclear how the production of information would “inhibit the free flow of information.”130 Thus, while Branzburg is still good law, there can be no First Amendment basis for the researchers’ privilege. B.

There Is No Statutory Basis for a Researchers’ Privilege

Some have proposed the statutory creation of a researchers’ privilege.131 While some states have laws designed to protect journalists’ sources that may be read expansively enough to protect researchers,132 only one state, Delaware, has a “reporter’s shield” law 124. Id. 125. Id. at 1279. 126. See id. 127. See Murray, supra note 112, at 679 (noting that it is not clear how the researcher’s privilege “can thrive in the shadow of Branzburg”). 128. 408 U.S. 665 (1972). 129. Id. at 667, 691–92. 130. Univ. of Pa. v. EEOC, 493 U.S. 182, 201 (1990). 131. See Adams, supra note 106. 132. See id. at 350.

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that covers researchers.133 The only federal law that protects the confidentiality of research subjects simply protects their identity and does not rule out the disclosure of source data with adequate redactions.134 In the absence of specific statutory authority regarding the researchers’ privilege, disputes concerning requests for a researcher’s information are usually addressed with a motion to quash a subpoena under Federal Rule of Civil Procedure 45; a motion for a protective order under Federal Rule of Civil Procedure 26(a) or Federal Rule of Evidence 501; a challenge to a FOIA request; or equivalent motions under state statutes. In In re American Tobacco Co.,135 the United States Court of Appeals for the Second Circuit considered whether a researcher’s interest in protecting data merited a protective order.136 In that case, three tobacco companies sought data from a medical school and a cancer society for use in the litigation. The district court below had held that under state law, a researcher might have a cognizable interest in preventing the disclosure of research data to protect the researcher’s interest in publishing unique results,137 but the existence of such a privilege was not clear. The Second Circuit observed that while a researcher may want to prevent “preemptive or predatory publication by others” based on premature access to the researcher’s data, early publication was not a concern in this case.138 133. McLaughlin, supra note 104, at 945 (“Delaware’s shield statute defines ‘reporter’ to mean ‘any journalist, scholar, educator, polemicist’ or individual engaged in producing information for public dissemination.”) (citing DEL. CODE ANN. tit. 10, § 4320 (1992)). 134. See 42 U.S.C.A. § 241(d) (Westlaw 2015). The Secretary [of Health and Human Services] may authorize persons engaged in biomedical, behavioral, clinical, or other research (including research on mental health including research on the use and effects of alcohol and other psychoactive drugs) to protect the privacy of individuals who are the subject of such research by withholding from all persons not connected with the conduct of such research the names or other identifying characteristics of such individuals. Persons so authorized to protect the privacy of such individuals may not be compelled in any Federal, State, or local civil, criminal, administrative, legislative, or other proceedings to identify such individuals. Id. 135. 880 F.2d 1520 (2d Cir. 1989). 136. See id. at 1522. 137. Id. at 1525–26. 138. Id. at 1529.

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Research can be too tangential for a court to involve third-party researchers in a trial. In United States v. Roberts,139 the court quashed a subpoena served by two criminal defendants who attempted to obtain discovery of data from the National Academy of Science for use in a hearing on the admissibility of DNA evidence. The defendants sought “all communications, assessments, reviews or like documents” concerning a report published by the Academy, The Evaluation of Forensic DNA Evidence: An Update.140 Quashing the subpoena, the Roberts court expressed concern about allowing defendants to subpoena the Academy on an issue that could be relevant in any case involving DNA evidence. Clearly, there must be limits to the discovery of researchers’ information. Parties to litigation may also seek disclosure of research data under FOIA from a government agency that conducts research or from a professor at a state educational institution. Despite FOIA’s strong presumption in favor of disclosure,141 researchers have used FOIA exemptions in an attempt to prevent disclosure.142 FOIA has played a major role in a high-profile dispute between a Virginia climate-change scientist and organizations that sought access to the scientist’s email and data to investigate allegations of fraud.143 And in the leading case on the disclosure of researcher data under FOIA, the United States Court of Appeals for the District of Columbia Circuit concluded that the Department of Health and Human Services could not refuse to produce data just “because disclosure would diminish the researchers’ ability to publish their results in prestigious

139. Nos. F-771-01 and F-3986-00 (D.C. Super. Ct. Feb. 4, 2003) (order denying issuance of a subpoena). 140. Id. 141. See S. REP. NO. 89-813, at 3 (1965) (stating that the purpose of FOIA is to “establish a general philosophy of full agency disclosure . . . and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld”). 142. See Burka v. U.S. Dep’t of Health and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996); See also Highland Mining Co. v. W. Va. Univ. Sch. of Med., No. 12-C-275, 2014 WL 7688106, at *20 (W. Va. Cir. Ct. Mar. 19, 2014), rev’d, No. 14-0370, 2015 WL 3368504 (W. Va. May 21, 2015). Highland Mining is discussed in more detail below. 143. Bryan McKenzie, Former UVa Climate Scientist Awarded Damages in FOIA case, THE ROANOKE TIMES, July 13, 2014, http://www.roanoke.com/ news/former-uva-climate-scientist-awarded-damages-in-foia-case/article_dbf259e4 -dc70-5962-81f3-be4483cbff5f.html.

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journals.”144 The court in Highland Mining Co. v. West Virginia University School of Medicine concluded, using a convoluted argument, that a university professor’s research data was protected from disclosure under West Virginia’s FOIA because of “academic freedom” and because the data was an internal memorandum prepared for a public body.145 The West Virginia Supreme Court of Appeals disagreed, indicating that FOIA has no “academic freedom” exception to its general disclosure provision.146 Under the Federal Rules of Civil Procedure, courts may protect the confidentiality of study participants while allowing full disclosure with a confidentiality order.147 In Deitchman v. E.R. Squibb & Sons, Inc.,148 a drug company sought the production of every document in the Registry for Hormonal Transplacental Carcinogenesis at the University of Chicago.149 The Registry monitored the incidence of cancers of the genital tract. On March 4, 1983, the custodian of the Registry’s records and chairman of the University of Chicago’s Department of Obstetrics and Gynecology, Dr. Arthur L. Herbst, filed a motion to quash Squibb’s subpoenas. While Herbst cited many concerns about divulging the registry’s data: [h]is real and deepest objection [was] that he must be allowed to divulge to the public the results of his studies only in his own time and way. His conclusions [were] still tentative, data [was] still being collected. He [had] not yet submitted his case to “peer review” as is normal in the scientific community, despite his many publications.150 The court, however, correctly noted that epidemiological studies, such as the registry, “may have a number of different, but inadvertent, biases present.”151 In addition, “It could easily be that 144. Burka, 87 F.3d at 521. 145. Highland Mining Co., 2014 WL 7688106, at *11–13. 146. Highland Mining Co., 2015 WL 3368504. Note that the Court remanded the case for further consideration of FOIA issues, which are not the subject matter of this Article. See id. at *18. 147. See FED. R. CIV. P. 26(c) (“A party or any person from whom discovery is sought may move for a protective order . . . .”). 148. 740 F.2d 556 (7th Cir. 1984). 149. Id. at 558. 150. Id. at 560. 151. Id. at 563 (citing David L. Sackett, Bias in Analytic Research, 32 J. CHRONIC DISEASES 51 (1979)).

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Squibb would be hit with large verdicts on the basis of conclusions that are avowedly only tentative. After a series of final judgments, Dr. Herbst might one day announce that new information has led him to abandon his previous conclusions.”152 Researchers cannot detect these problems and biases in the absence of access to the underlying data. At the same time, the court was concerned about the disclosure of confidential patient information. The lower court had not considered a solution, such as the use of a protective order, which could have allowed the disclosure of Registry information only to experts and attorneys involved with the litigation.153As a result, the court remanded the case for formulation of a solution that “allow[ed] Squibb the least necessary amount of information to avoid a miscarriage of justice without doing needless harm to Dr. Herbst or his Registry.”154 In the absence of a statutory researchers’ privilege, research data should be treated by courts as any other request for discovery directed to a third party. While courts will have to weigh the merits and the value of any discovery sought, the Constitution justifies no special treatment for academic research data. Creating a statutory researchers’ privilege also poses due-process concerns if research is admitted as evidence in a trial. Unlike a news article, which is generally inadmissible as hearsay,155 courts regularly admit research conclusions as evidence through the testimony of expert witnesses.156 In the words of one commentator, this evidence might not be so problematic “if we could guarantee that the out-of-court writing is

152. Id. 153. Id. at 565. 154. Id. 155. See Daniel E. Field, Annotation, Admissibility of Newspaper Article as Evidence of the Truth of the Facts Stated Therein, 55 A.L.R. 3d 663 (1974). 156. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 (1993), superseded by rule of evidence, FED. R. EVID. 702. The Supreme Court in Daubert recommended five factors to consider when deciding whether to admit scientific research as opposed to employing a traditional hearsay analysis. The five factors are (1) whether the evidence is “falsifiable” and has been tested, (2) “whether the theory or technique has been subjected to peer review and publication,” (3) what the known or potential rate of error of the technique is, (4) whether standards exist and are maintained for controlling this technique’s operation, and (5) whether the methods and reasoning are generally accepted. Id. at 593–94.

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genuine, accurate, trustworthy, reliable, relevant and ‘fits’ the facts and issues in the case. But how can we know that?”157 C.

There Is No Justification for a Common Law Researchers’ Privilege

In addition to the fact that the so-called researchers’ privilege is of dubious value to the academic community at large, research data does not fit the typical criteria for the creation of a common-law privilege. According to Wigmore, courts require four conditions to establish a common-law privilege that would protect communications from disclosure: (1) The communication must have been made with the understanding that it would not be disclosed. (2) The element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties. (3) The relationship must be one which in the opinion of the community ought to be sedulously fostered. (4) The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit that would result from requiring the disclosure.158 Based on Wigmore’s factors, a common-law researchers’ privilege is unjustified. First, because a third party to the litigation typically asserts the researchers’ privilege, there is no “relationship” and no “communication” to protect. Second, the “benefit” weighed in the fourth factor is the health and welfare of the public. If a court does not permit disclosure, potentially flawed research could influence legal determinations that impact public health. Third, Wigmore’s factors only apply when a relationship dependent on confidentiality is at issue.159 Thus, an academic researcher can only rely upon a common-law privilege against disclosure of research data 157. Michael Hoenig, ‘Unreliable’ Articles, ‘Trial by Literature’ Revisited, N.Y. L.J. (May 12, 2014), available at http://www.herzfeld-rubin.com/ publ_complexlitigation_20140512.html. 158. 8 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2285 (John T. McNaughton ed., rev. ed. 1961). 159. See J. Graham Matherne, Note, Forced Disclosure of Academic Research, 37 VAND. L. REV. 585, 608 (1984).

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if the data is confidential in the first place.160 Wigmore’s factors would weight in favor of the creation of a researchers’ privilege in few circumstances, and even then the court could simply protect a researcher’s interest in his or her data by issuing a confidentiality order.161 But if the research data in question is not confidential, then the researcher should produce the information, subject to requirements of Federal Rule of Civil Procedure 45 or its state-law equivalent.162 Indeed, the researchers’ privilege would be a strange fit—if it fit at all—when compared to other privileges. This privilege is the inverse of traditional privileges because it protects the source rather than the substance of information, and it gives the ability to waive the privilege to the listener as opposed to the speaker.163 It also begs the question: who would be entitled to assert such a privilege when the term “researcher” is used without regulation?164 Who would be entitled to claim protection? Only college professors? Community college professors? Students doing research for a paper? Scientists employed by corporations? A common-law solution would not easily answer these questions. Additionally, even when a researcher promises a subject confidentiality, that promise might not be of any significance to the research. The case of In re Grand Jury Subpoena Dated January 4, 1984, 165 involved an explosion at a restaurant.166 A waiter at the restaurant, who was also a Ph.D. candidate, was in the process of writing his thesis, The Sociology of the American Restaurant, which relied heavily on his experience as a waiter at the restaurant.167 When subpoenaed, the waiter refused to comply, claiming that he had promised many of his sources confidentiality.168 The court noted that the waiter had provided no information as to why confidentiality was 160. See id. 161. See Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556, 564–66 (7th Cir. 1984) (noting that quashing a subpoena is inappropriate where confidentiality interests can be safeguarded by means of a protective order). 162. See Matherne, supra note 159, at 594–96. 163. See Adams, supra note 106, at 347 (citing Jeffery S. Nestler, Comment, The Underprivileged Profession: The Case for Supreme Court Recognition of the Journalist’s Privilege, 154 U. PA. L. REV. 201, 212 (2005)). 164. See id. 165. 750 F.2d 223 (2d Cir. 1984). 166. Id. at 224. 167. Id. 168. Id.

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necessary for the methodology of his study, or even what his methodology was.169 Noting that there was not enough information to make a determination on the waiter’s claim of privilege, the court stated: Surely the application of a scholar’s privilege, if it exists, requires a threshold showing consisting of a detailed description of the nature and seriousness of the scholarly study in question, of the methodology employed, of the need for assurances of confidentiality to various sources to conduct the study, and of the fact that the disclosure requested by the subpoena will seriously impinge upon that confidentiality.170 III. SOLUTION: DISCLOSURE Although research data must be available to test the reliability of published conclusions, some courts have an inflated view of the extent of the peer-review process and therefore refuse to allow discovery of third-party research data. According to the California Court of Appeals, the disclosure of research data is unnecessary because “published academic studies are exposed to extensive peer review and public scrutiny that assure objectivity.”171 This standard of review is clearly not reality. In fact, as demonstrated above, in many cases there is minimal, if any, pre-publication peer review and most publications undergo no “public scrutiny” at all. A naïve understanding of the current state of research and an aggrandized understanding of the capabilities of the peer-review process172 can result in rulings that are unjust and that adversely affect public health. As stated by one medical-research publication:

169. Id. 170. Id. at 225. 171. Humane Soc’y of the U.S. v. Super. Court, 155 Cal. Rptr. 3d 93, 122 (Ct. App. 2013). 172. Indeed, there are now reports in the literature describing “fake peer-review reports” and “peer review rings.” See Fred Barbash, Scholarly Journal Retracts 60 Articles, Smashes ‘Peer Review Ring,’ WASH. POST, July 10, 2014, http://www.washingtonpost.com/news/morning-mix/wp/2014/07/10/scholarlyjournal-retracts-60-articles-smashes-peer-review-ring/; Charles Seife, Science’s Big Scandal: Even Legitimate Publishers are Faking Peer Review, SLATE (April 1, 2015, 10:25 AM), http://www.slate.com/articles/health_and_science/science/2015/

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It has been amply documented that the current situation, with selective reporting of favorable research and biased data analyses being the norm rather than the exception, is harmful to patients and has led to the death of tens of thousands of patients that could have been avoided.173 If the court cannot even get a researcher to disclose data, then who can? According to the American Association for the Advancement of Science’s Committee on Scientific Freedom and Responsibility, “One of the basic responsibilities of scientists is to maintain the integrity of the work of the scientific community. Ideally, it is an open community—all findings should be publically and generally available, and open to criticism, improvement, and, if necessary, rejection.”174 Thus, the acceptance of a researchers’ privilege would undermine the integrity of the scientific community by promoting secrecy and allowing researchers to insulate errors from the detection of the academic community and society at large.175 But open access to research data promotes the integrity of science by allowing verification.176 “Data withholding potentially limits this fundamental quality control process when authors refuse to share unique resources

04/fake_peer_review_scientific_journals_publish_fraudulent_plagiarized_or_nonse nse.html. 173. Peter C. Gotzsche, Why We Need Easy Access to All Data from All Clinical Trials and How to Accomplish It, TRIALS (Nov. 23, 2011), http://www.trialsjournal.com/content/12/1/249. 174. JOHN T. EDSALL, AM. ASS’N FOR THE ADVANCEMENT OF SCI., SCIENTIFIC FREEDOM AND RESPONSIBILITY 8 (1975). 175. See David A. Kaplan & Brian M. Cogan, The Case Against Recognition of a General Academic Privilege, 60 U. DET. J. URB. L. 205, 225 (1982). Recognition of a general privilege, on the other hand, would do no more than promote secrecy and preclude a free and open debate on the merits and conclusions of the research project. The value of academic research, whether conducted in the physical or social sciences, is diminished if the researcher can insulate errors which otherwise may be found as a result of scrutiny from either the general public or those who have a special interest in disproving the conclusions reached by the researcher. Id. 176. See id.

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. . . necessary to confirm scientific claims.”177 According to the Supreme Court, “It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation.”178 Open access to research data supports those goals. Courts, however, have created justifications using dubious reasoning to thwart attempts to compel the disclosure of research data. These justifications include the claim that the legal system will not be able to understand the “jargon” and “midstream thinking” involved in research data.179 And courts hypothesize that researchers would be “chilled”180 and suffer “embarrassment and inconvenience”181 if the “fruits of their labors had been appropriated by and were being scrutinized by a not-unbiased third party whose interests were arguably antithetical to theirs.”182 In other words, some courts appear concerned that researchers will be less likely to produce research, and may even be embarrassed, if an examination of their research data by a hostile party were to find flaws in their research.183 Contrary to the opinions of these courts, the publishers of flawed research should be embarrassed. The fear of embarrassment will result in fewer unreliable or fraudulent papers if it spurs researchers to exercise more care in their methodology, analysis, and conclusions. If researchers, authors, and peer reviewers cannot scrutinize the data, then the courts should provide a mechanism whereby it can be done. Ultimately, the solution to this problem is simple: courts should favor the disclosure of research data by third-party researchers. If some data needs to be protected, then courts can accomplish this by

177. Eric Campbell & David Blumenthal, The Selfish Gene: Data Sharing and Withholding in Academic Genetics, SCIENCE (May 31, 2002), http://sciencecareers.sciencemag.org/career_magazine/previous_issues/articles/200 2_05_31/nodoi.5822398718525511595. 178. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (quoting CONFERENCE OF REPRESENTATIVES OF THE UNIV. OF CAPE TOWN AND THE UNIV. OF THE WITWATERSRAND, THE OPEN UNIVERSITIES IN SOUTH AFRICA 11–12 (1957)). 179. See Humane Soc’y of the U.S. v. Super. Ct., 155 Cal. Rptr. 3d 93, 122 (Ct. App. 2013). 180. See In re Fosamax Prods. Liab. Litig., 74 Fed. R. Serv. 3d 190 (S.D.N.Y. 2009). 181. Apicella v. McNeil Lab., Inc., 66 F.R.D. 78, 85 (E.D.N.Y. 1975). 182. Dow Chemical Co. v. Allen, 672 F.2d 1262, 1276 (7th Cir. 1982). 183. Id. at 1279 (Pell, J., concurring).

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issuing confidentiality orders.184 As the Supreme Court’s Sweezy opinion states, “It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation.”185 The best atmosphere for academic research is transparency, and legal precedent that prevents research data from ever seeing the light of day does not foster quality research, scientific progress, or public health.

184. See Deitchman v. E.R. Squibb & Sons, Inc., 740 F.2d 556 (7th Cir. 1984). 185. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957).

COMMENT A CARING DEFINITION OF “CARE”: WHY COURTS SHOULD INTERPRET THE FMLA TO COVER UNCONVENTIONAL TREATMENT OF SERIOUSLY ILL FAMILY MEMBERS MARGARET WRIGHT* ABSTRACT The Family and Medical Leave Act (FMLA or the Act) allows eligible employees to take unpaid leave to care for a spouse, child, or parent with a serious health condition. When it was passed in 1993, the Act was heralded as groundbreaking legislation to help Americans balance employment obligations and family needs. But courts had difficulty implementing the Act. Courts are particularly troubled when employees take leave to provide unconventional care—activities other than the medical treatment of family members. In these situations, courts frequently interpret FMLA-authorized care narrowly and deprive employees of FMLA coverage. These narrow interpretations of FMLA care disregard the intent of the Act: to help working caregivers find balance between employment and family obligations. This Comment endorses a broad interpretation and proposes a three-part test for courts to apply when analyzing FMLA care. This newly crafted test requires an employee to prove that the family member in question had a time-sensitive medical need, that the employee’s activity was performed with intent to serve that medical need, and that the employee did confer a likely benefit to the family member related to that need. This innovative approach evaluates FMLA care more thoroughly, yielding more consistent results in courts’ decisions. The test also generates more comprehensive coverage for employees, thereby better effectuating FMLA policy goals.

* Margaret Wright, Executive Articles Editor, Mississippi Law Journal; J.D. Candidate 2016, University of Mississippi School of Law. The author wishes to thank Professor Jack Nowlin for his guidance and support in writing this Comment.

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TABLE OF CONTENTS INTRODUCTION ................................................................................... 36 I. RECENT FMLA-CARE CASES .......................................................... 40 A. The Proximity Test .............................................................. 40 1. Cases Refusing FMLA Protection................................. 40 2. Cases Affording FMLA Protection ............................... 44 B. Other Interpretations of FMLA Care.................................. 44 1. Cases Refusing FMLA Protection................................. 45 2. Cases Affording FMLA Protection ............................... 51 II. COURTS NEED TO BROADEN THE INTERPRETATION OF FMLA CARE TO FULFILL FMLA POLICY GOALS ...................................... 53 A. The Typical Workplace Is Inflexible ................................... 53 B. Work-Family Conflict Norms Are Changing ...................... 55 1. Changes in Political Discourse ...................................... 56 2. Changes in Industry Practice ......................................... 58 III. COURTS SHOULD ADOPT A THREE-PART TEST FOR BETTER GUIDANCE IN FMLA CARE CASES .............................................. 59 A. Why a New Test Is Needed .................................................. 59 B. A New Three-Part Test ....................................................... 60 1. Components of the Test................................................. 61 2. Defense of the Test as the Best Way to Implement FMLA Policy Goals ................................... 65 C. Application of the Test to Existing Caselaw ....................... 66 1. Proximity Interpretations of Care .................................. 66 2. Other Interpretations of Care......................................... 72 CONCLUSION ..................................................................................... 76 INTRODUCTION An employee with a hospitalized daughter was fired after leaving work to mow the lawn and clean the house in preparation for his daughter’s return.1 A court held that the Family and Medical Leave Act (FMLA or the Act) did not protect the employee because he was not “caring for” his daughter.2 At first glance, this decision seems appropriate because the employee’s activities appeared unrelated to his daughter’s care. But seemingly unrelated activities could turn into 1. Baham v. McLane Foodservice, Inc., 431 F. App’x 345, 346 (5th Cir. 2011). 2. Id. at 348.

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legitimate—yet unconventional—care, depending on the circumstances. What if the unclean house would have exacerbated the daughter’s physical condition? What if preparing the house significantly improved the daughter’s psychological health upon her return? Courts across the country are confronting increasing instances of unconventional care, which pose a dilemma because the FMLA’s definition of “care” is unclear. As a result, courts produce conflicting interpretations of care and thus deliver vastly inconsistent results in FMLA disputes. Recognizing that “[p]rivate sector practices and government policies . . . failed to adequately respond to recent economic and social changes that . . . intensified the tensions between work and family,”3 Congress passed the FMLA in 1993.4 “Since the enactment of the FMLA, more than 35,000,000 Americans have used the Act to take leave for family or medical reasons.”5 When President Clinton signed the FMLA into law in 1993, he stated, “It is neither fair nor necessary to ask working Americans to choose between their jobs and their families—between continuing their employment and tending to . . . vital needs at home.”6 Congress passed the FMLA to alleviate this very problem— balancing employment obligations and crucial family needs.7 The FMLA sought to resolve this conflict by giving working caregivers the opportunity to take time off work when needed by their family members.8 The FMLA was groundbreaking legislation because it was “the first and only piece of federal legislation specifically aimed at helping families balance” these competing demands.9 Under the Act, eligible employees may take a total of 12 workweeks per year of unpaid leave to care for a spouse, child, or parent with a serious health condition.10 At the conclusion of the 3. S. REP. NO. 103-3, at 4 (1993), as reprinted in 1993 U.S.C.C.A.N. 3, 6. 4. Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codified as amended at 29 U.S.C.A. §§ 2601–2654 (Westlaw 2015)). 5. Kimberly Menashe Glassman, Note, Balancing the Demands of the Workplace with the Needs of the Modern Family: Expanding Family and Medical Leave to Protect Domestic Partners, 37 U. MICH. J.L. REFORM 837, 852 (2004). 6. Id. at 843 (quoting Statement on Signing the Family and Medical Leave Act of 1993, 29 WEEKLY COMP. PRES. DOC. 144, 145 (Feb. 5, 1993)). 7. Id. at 842. 8. See Glassman, supra note 5, at 842. 9. Rona Kaufman Kitchen, Off-Balance: Obama and the Work-Family Agenda, 16 EMP. RTS. & EMP. POL’Y J. 211, 221 (2012). 10. 29 U.S.C.A. § 2612(a)(1) (Westlaw 2015).

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leave, the employee is then entitled to reinstatement to the same position previously held or to an equivalent position with the same terms and benefits.11 At first glance, the FMLA seems to help employees tremendously when their family members become seriously ill. But because of its numerous eligibility and qualification requirements, the Act fails to provide the protection that workers need and fails to fulfill its policy goals.12 Moreover, the FMLA provision authorizing leave to care for an ill family member13 is “deceptively simplistic” and difficult for courts to implement.14 Even for eligible employees, taking leave to care for family members can be difficult. Because many types of care do not involve active medical treatment, courts may refuse FMLA protection even for legitimate, yet unconventional, care. Despite the protections of the FMLA, many working Americans are “one sick child away from being fired.”15 Although the FMLA provides little guidance on the meaning of “care,” the relevant Department of Labor regulations do provide a loose definition. Congress expressly delegated the authority to promulgate regulations “necessary to carry out” the FMLA to the Department of Labor.16 Under these regulations, FMLA care “encompasses both physical and psychological care” that includes “providing psychological comfort and reassurance which would be beneficial” to an ill family member and making “arrangements for changes in care.”17 Even with this guidance, however, courts vary in 11. 29 U.S.C.A. § 2614(a). 12. See Michael Selmi, Is Something Better than Nothing? Critical Reflections on Ten Years of the FMLA, 15 WASH. U. J.L. & POL’Y 65 (2004); see also Bargaining Fact Sheet, Family Leave and Expanding the Family and Medical Leave Act, AFL-CIO (2001), http://www.aflcio.org/content/download/7172/ 77083/family-1.pdf (stating that forty-one million Americans, or 40% of privatesector workers, were not covered by the FMLA as of Spring 2001); Facts About the FMLA: What Does It Do, Who Uses It, and How, NAT’L PARTNERSHIP FOR WOMEN & FAMILIES, http://www.nationalpartnership.org/site/DocServer/FMLAWhatWho How.pdf?docID=965 (last visited June 13, 2015) (stating that 60% of workers have FMLA coverage). 13. 29 U.S.C.A. § 2612(a)(1)(C). 14. Maegan Lindsey, Comment, The Family and Medical Leave Act: Who Really Cares? 50 S. TEX. L. REV. 559, 560 (2009). 15. JOAN C. WILLIAMS, UC HASTINGS COLLEGE OF LAW, CTR. FOR WORKLIFE LAW, ONE SICK CHILD AWAY FROM BEING FIRED: WHEN “OPTING OUT” IS NOT AN OPTION (2006), available at http://www.worklifelaw.org/pubs/onesickchild.pdf. 16. See 29 U.S.C.A. § 2654. 17. 29 C.F.R. § 825.124(a)–(b) (2014).

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their application of the term. The resulting inconsistency “creates tension not only in the court system but also in companies across the United States.”18 A sharper definition of FMLA care is imperative to allow the FMLA to fulfill its policy objectives. Moreover, in analyzing FMLA coverage of psychological care, Congress explained: Parents provide far greater psychological comfort and reassurance to a seriously ill child than others not so closely tied to the child. In some cases there is no one other than the child’s parents to care for the child. The same is often true for adults caring for a seriously ill parent or spouse.19 Also, including psychological care in the definition introduces a host of activities that could technically be classified as care. While conventional methods of care may be easily classified under the regulations, unconventional methods are more troublesome. A recent emergence of FMLA-care cases demonstrates courts’ varying interpretations of FMLA care and illustrate the problematically unclear definition of “care.” Instead of waiting for a legislative change to the FMLA, courts should adopt a test to make FMLA-care determinations. This test consists of three factors: (1) medical need, (2) intent to serve the medical need, and (3) likely conferral of a benefit on the ill family member. The definition of “care” has begun to emerge as a legal issue because current FMLA disputes commonly involve unconventional care. This Comment collects and analyzes the most recent cases from federal courts analyzing unconventional care under the FMLA and is the first to propose a test for evaluating care in FMLA disputes. Courts have yet to apply such a test, instead relying on their own statutory interpretations; as a result, decisions are inconsistent and unfair for both employers and employees. Commentators on the issue have failed to propose clear solutions other than suggestions to amend the legislation and to provide an unambiguous definition of “care.”20 But even without amending the Act, the test proposed in this Comment will ease judicial burdens, produce uniform results, and effectuate the results that Congress intended. 18. Lindsey, supra note 14. 19. S. REP. NO. 103-3, at 24 (1993), as reprinted in 1993 U.S.C.C.A.N. 3, 26. 20. Lindsey, supra note 14, at 561.

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Part I of this Comment collects recent caselaw involving unconventional care under the FMLA and explains the various approaches that courts employ to define FMLA care. Part II argues that typical American employers are extremely inflexible and impose work-family conflicts on employee caregivers. Part II also examines the emerging trend towards alleviating the burdens of working caregivers, arguing that this trend supports a broad definition of FMLA care. Part III explains why a judicially created test is needed in FMLA-care disputes, details the components of the test, and explains why each component of the test is necessary for FMLA-care interpretations. Part III then applies the test to the FMLA cases discussed in this Comment. I. RECENT FMLA-CARE CASES Because of the unclear statutory definition of “care” in the FMLA, courts struggle to identify valid care-giving circumstances when employees seek FMLA protection for providing unconventional care. With no definitive test, courts must develop their own guidelines for these situations. Some courts use a brightline rule that narrowly defines FMLA care as requiring proximity to the family member; others simply rely on their own intuitions to make determinations on a case-by-case basis. These varying methods produce vastly inconsistent results. A. The Proximity Test The proximity test for determining FMLA protection strictly analyzes an employee’s activities based on their location, requiring the employee’s “close and continuing proximity” to the family member in question.21 This test often excludes unconventional care from FMLA protection because such care frequently occurs in the family member’s absence. 1. Cases Refusing FMLA Protection a. Baham v. McLane Foodservice, Inc. When Girard Baham’s daughter fell and suffered serious head trauma, Baham took time off from work to care for his daughter; however, he left the state where his daughter was hospitalized to

21. Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005).

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return home after receiving complaints about his untended yard.22 In addition to mowing the yard, Baham testified that his “house needed to be cleaned, and that he needed to add padding to the sharp edges in the home to protect his daughter upon her return.”23 Baham was alone without his wife or his injured daughter for several days; however, he remained in constant telephone contact with them during that time.24 The court held that Baham did not qualify for FMLA protection because he was in another state and was not in his daughter’s presence for two weeks while he was taking care of the home— mowing the lawn, cleaning the house, and padding the furniture.25 The court reasoned that “merely remaining in frequent telephone contact with a relative while in another state” was insufficient to constitute FMLA “care.”26 b. Tellis v. Alaska Airlines, Inc. Charles Tellis requested leave to care for his wife, who was having difficulties with her pregnancy.27 Tellis’s vehicle later broke down, so he flew to Atlanta to retrieve another vehicle he owned and drove it back to his home in Seattle.28 Tellis called his wife regularly during the trip.29 His sister-in-law stayed with his wife, who gave birth while Tellis was away.30 The court concluded that Tellis was not “caring for” his wife because he was not participating in her ongoing treatment; in fact, he left her for four days.31 He was therefore not in “close and continuing proximity” to his wife.32 Tellis argued that his trip provided psychological reassurance to his wife, but the court reasoned that while retrieving a working vehicle may provide such reassurance, Tellis failed to participate in his wife’s medical care.33 Moreover, the 22. 2011). 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

Baham v. McLane Foodservice, Inc., 431 F. App’x 345, 346 (5th Cir. Id. Id. Id. at 349. Id. Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1046 (9th Cir. 2005). Id. Id. Id. Id. at 1048. Id. at 1047. Id. at 1048.

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court refused to consider the phone calls as participation in ongoing treatment.34 c. Alsoofi v. Thyssenkrupp Materials NA, Inc. Fathi Alsoofi requested FMLA leave when his sister, who usually cared for their seriously ill mother, was unable to provide care due to her wedding in Yemen.35 But days before the trip to Yemen, Alsoofi’s brother, who was scheduled to accompany his sister, had emergency surgery.36 The family’s customs required Alsoofi’s sister to travel with a male family member.37 Therefore, instead of caring for his mother, Alsoofi took over his disabled brother’s role and traveled to Yemen.38 He spent most of his time in Yemen attending to his sister’s wedding and visiting family and friends.39 He communicated with his mother while away, but did not speak to any doctors or help make any medical decisions.40 The court found that because Alsoofi “was, almost literally, half a world away,” his activities did not constitute FMLA-covered care.41 While traveling with his sister could have provided his mother with “some degree of psychological comfort,” this comfort was not a direct benefit of his activities.42 Therefore, Alsoofi’s travel lacked FMLA protection.43 d. Shulman v. Amazon.com, Inc. Julian Ari Shulman filed suit after being denied FMLA leave for researching “possible care options for [his] ill family member.”44 When filing for FMLA leave, Shulman was advised that “until . . . he

34. Id. 35. Alsoofi v. Thyssenkrupp Materials NA, Inc., No. 09-CV-12869, 2010 WL 973456, at *1 (E.D. Mich. Mar. 15, 2010). 36. Id. 37. Id. 38. Id. 39. Id. 40. Id. 41. Id. at *5–6. 42. Id. at *6. 43. Id. 44. Shulman v. Amazon.com, Inc., No. C13-247RSM, 2013 WL 2403256, at *1 (W.D. Wash. May 30, 2013).

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would be traveling to physically be with his family member, the leave would not be approved.45 Still, Shulman took off work.46 Opposing Amazon’s motion to dismiss, Shulman argued that his research was a permissible basis for FMLA leave under the FMLA’s make-arrangements-for-changes-in-care provision.47 But the court found that there was “a substantive difference between researching possible care options from afar, and actually carrying out the changes, including transfer of the ill family member from one place to another. The latter . . . requires the physical presence of the family member.”48 Therefore, Shulman’s research was not protected FMLA care.49 e. Boecken v. Gallo Glass Co. Larry Boecken was granted FMLA leave to care for his 90-yearold grandmother, who suffered from chronic heart disease.50 But after leaving work, he did not go directly home to care for his grandmother; instead, he drove to a public park to take walks.51 At trial, Boecken asserted that he took his walks “to relieve his own stress and admitted that he [did not provide care] to his grandmother while in the park.”52 The court held that because Boecken’s walks did not involve “close proximity” to his grandmother, he had not provided FMLA care.53 On appeal, the United States Court of Appeals for the Ninth Circuit affirmed the district court’s holding regarding Boecken’s misuse of FMLA leave.54

45. Id. at *2 (emphasis added). 46. Id. at *1. 47. Id. at *3. 48. Id. 49. Id. 50. Boecken v. Gallo Glass Co., No. 1:05-cv-00090-OWW-DLB, 2008 WL 4470759, at *2 (E.D. Cal. Sept. 30, 2008) aff’d in part, rev’d in part, and remanded, 412 F. App’x 985 (9th Cir. 2011). 51. Id. at *3. 52. Id. 53. Id. at *8. 54. Boecken, 412 F. App’x at 987.

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2. Cases Affording FMLA Protection a. Scamihorn v. General Truck Drivers Joseph Scamihorn took time off work for several months to care for his father, who had fallen into a deep depression.55 While residing in his father’s hometown, Scamihorn spoke with his father daily “and he performed various chores around the house, including shoveling snow, chopping firewood used to heat the house, clearing the backyard and cleaning the garage. Additionally, Scamihorn drove his father to counseling sessions on four or five occasions.”56 Although Scamihorn’s father was “still able to shower, dress, eat, drive, take care of medical and safety needs and engage in various daily activities without assistance from others, he later declared, ‘I felt I needed [Scamihorn] by me full time.’”57 A doctor further testified that the father specifically needed Scamihorn’s presence to aid in his recovery.58 The court reasoned that although Scamihorn did not personally attend any of his father’s counseling sessions, “he participated in [his father’s] treatment through both his daily conversations . . . and his constant presence in his father’s life.”59 The court also found that Scamihorn’s household chores qualified as psychological care because they contributed to his constant physical presence in his father’s life.60 Therefore, the court found that Scamihorn raised a genuine issue of material fact regarding whether his activities were necessary to his father’s recovery.61 B. Other Interpretations of FMLA Care Even without applying the proximity test, many courts employ various approaches to narrowly interpret the FMLA. These courts regularly deny FMLA protection for employees providing unconventional care, sometimes even while maintaining close physical proximity. Alternatively, some courts broadly interpret the FMLA, frequently protecting providers of unconventional care, but these 55. 56. 57. 58. 59. 60. 61.

Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1080 (9th Cir. 2002). Id. at 1087. Id. Id. n.8. Id. at 1088. Id. Id.

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courts lack specific guidelines to regulate their analyses. Instead, they determine FMLA care on a case-by-case basis, relying on their own intuitions and statutory interpretations. While these broad interpretations better effectuate FMLA’s policy goals, they lack a clear test and pose a risk of inconsistent policy preferences and unfair results in FMLA disputes. 1. Cases Refusing FMLA Protection a. Lane v. Pontiac Osteopathic Hospital Joe Lane applied for FMLA leave to care for his mother, “who was suffering from diabetes, high blood pressure, weight loss, and arthritis.”62 “During this period, [Lane] regularly left work to assist his mother with meals and to take her to doctors appointments.”63 After Lane was terminated, he filed suit claiming that three of his absences “were protected by the FMLA because he took them to clean up flooding” at his mother’s home.64 Lane claimed “that his mother had hepatitis and the stagnant water was a ‘breeding ground’ for the disease.”65 The court found that Lane was “required to present evidence that his mother’s basement had to be immediately cleaned for her basic medical, hygienic, or safety needs and that he had to do it because she could not.”66 Because Lane failed to meet this requirement, the court denied Lane FMLA protection, as he was not needed to care for his mother.67 b. Marchisheck v. San Mateo County Fe Marchisheck’s son “was assaulted by several acquaintances. . . . [He] suffered a nasal contusion, two puncture burns on his back, abrasions, erythema on the right side of his neck, and a left lateral subconjunctival hemorrhage.”68 Concerned for her son’s safety, Marchisheck planned to move him to the Philippines to live with her

62. Lane v. Pontiac Osteopathic Hosp., No. 09-12634, 2010 WL 2558215, at *1 (E.D. Mich. June 21, 2010). 63. Id. at *2. 64. Id. 65. Id. 66. Id. at *4–5. 67. Id. 68. Marchisheck v. San Mateo Cnty., 199 F.3d 1068, 1071 (9th Cir. 1999).

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brother.69 Marchisheck believed that if she left her son alone he would be beaten or killed, and that his safety depended on moving to the Philippines.70 The court reasoned that Marchisheck’s “asserted purpose in moving [her son] to the Philippines was to keep him safe from further beatings; she was not moving [him] so that he could receive superior—or any—medical or psychological treatment.”71 Moreover, her son “did not see a doctor of any kind for more than five months after he moved overseas,” and “there were no psychological services available within a three-hour drive of the rural area of the Philippines to which [Marchisheck] took her son.”72 The court therefore found that Marchisheck’s act of moving her son, “although motivated by an understandable concern for [his] safety,” did not constitute FMLA-qualifying care.73 The court looked to the FMLA’s requirement that there be “some level of participation in ongoing treatment of [a serious health] condition.”74 Therefore, Marchisheck could not possibly care for her son “by removing him to a place where he would receive no treatment for either condition and leaving him there.”75 c. Tayag v. Lahey Clinic Hospital, Inc. Maria Lucia Tayag was terminated by her employer while taking an unapproved leave to accompany her husband, Rhomeo, on a spiritual healing trip.76 Rhomeo suffered from “gout, chronic liver and heart disease, rheumatoid arthritis, and kidney problems.”77 While on the trip, Tayag and her husband “went to Mass, prayed, and spoke with [a] priest and other pilgrims.”78 They also “visited other churches, friends, and family.”79 “Rhomeo received no conventional medical treatment and saw no doctors or health care providers.”80 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80.

Id. Id. Id. at 1076. Id. Id. Id. Id. Tayag v. Lahey Clinic Hosp., Inc., 632 F.3d 788, 789 (1st Cir. 2011). Id. Id. at 790. Id. Id.

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Tayag did, however, assist Rhomeo by administering his “medications, helping him walk, carrying his luggage, and being present in case his illnesses incapacitated him.”81 The court analyzed the FMLA’s definition of “health care provider” as “a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; or . . . any other person determined by the Secretary to be capable of providing health care services.”82 “Faith healing is addressed in the regulation identifying others ‘capable of providing health care services,’ which includes ‘Christian Science practitioners.’”83 The court noted that “Christian Scientists reject ordinary medical care . . . and so, as to a Christian Scientist patient, there is no duplication either for government insurance programs or for employers providing FMLA leave.”84 The court reasoned that Rhomeo was not a proper Christian Scientist patient because he received ordinary medical care and because Tayag took full advantage of the FMLA to provide Rhomeo assistance in connection with that care.85 Moreover, Tayag claimed that the “religiously affiliated healing programs [were] aimed at treating the illness and providing [Rhomeo] psychological comfort;” however, the court found no merit in this claim.86 Therefore, the court found that Tayag’s seven-week leave was not protected under the FMLA.87 d. Fioto v. Manhattan Woods Golf Enterprises Anthony Fioto “took a day off work to be present while his dying mother underwent emergency brain surgery,” after which he was fired.88 The record was devoid of any information regarding the condition of Fioto’s mother prior to the surgery, or what Fioto did while at the hospital; however, Fioto did not see his mother after the

81. Id. 82. Id. at 791 (quoting 29 U.S.C. § 2611(6) (2006)). 83. Id. (quoting 29 C.F.R. § 825.118 (2006)). 84. Id. 85. Id. 86. Id. at 792. 87. Id. at 793. 88. Fioto v. Manhattan Woods Golf Enters., 270 F. Supp. 2d 401, 402 (S.D.N.Y. 2003), aff’d, 123 F. App’x 26 (2d Cir. 2005).

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surgery.89 Moreover, there was no evidence regarding whether Fioto’s interacted with his mother or with her doctors.90 The court noted that: a child’s offering comfort and reassurance to a bedridden parent qualifies as “caring for” the parent. Moreover . . . assisting in the making of medical decisions on behalf of that parent also qualifies as “providing physical and psychological care” within the meaning of FMLA regulations. Indeed, . . . making medical decisions on behalf of an ailing parent is far more than psychological, and qualifies as assisting in the physical care of the parent.91 However, “the record [was] devoid of any evidence that Fioto was needed to provide either physical or psychological care for his mother.”92 The record failed to indicate whether his mother was conscious or unconscious when Fioto arrived at the hospital.93 Likewise, the record failed to indicate “whether [Fioto’s] mother was aware that [Fioto] was on his way to the hospital, or was capable of being aware of his imminent arrival.”94 The court noted: Because the language of the statute does not guarantee employees FMLA leave to visit an ailing parent, it was incumbent on plaintiff to demonstrate that he was doing something—anything—to participate in his mother’s care. It would not have taken much to meet the very loose “psychological care” standard.95 “Although one might speculate that [Fioto’s] presence at the hospital was desirable” to make medical decisions for his mother, “there was no evidence that he was the person with legal authority to make such decisions for her.”96 Aiming to avoid FMLA coverage for mere visitation, the court reasoned that the FMLA should not automatically be implicated where a plaintiff simply goes to the hospital where his mother is 89. 90. 91. 92. 93. 94. 95. 96.

Id. at 404. Id. Id. at 405. Id. Id. Id. Id. Id. at 406.

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having serious surgery.97 The court reasoned that if Congress had wanted the FMLA to cover such situations, it could have easily drawn the statute that broadly; however, Congress “chose to limit the FMLA’s reach to absences that were occasioned by the provision of care.”98 e. Overley v. Covenant Transport, Inc. Sharon Overley was fired after taking an absence from work to visit her daughter at an assisted living home.99 Overley also met with Jack Groves, an employee at the facility, about his possible [ability] to monitor her daughter’s trust. . . . [D]uring the meeting, [Overley and Groves] drove to a lot being considered for the construction of her daughter’s future residence. Overley spent the remainder of the day visiting a funeral home and doing her daughter’s laundry. 100 The court found that Overley did not show either “that she was ‘needed to care for’ her daughter . . . or that her activities” constituted FMLA-qualifying care.101 Overley testified that the primary purpose [for her leave] was to meet with Groves.” 102 The court reasoned, “Even assuming that this meeting qualifies as providing FMLAqualifying ‘care,’ there is no indication that it needed to occur on [that day].”103 Moreover, “Groves testified that the meeting . . . was not time sensitive and could have been held later” that month.104 Further, the record gave no indication of Overley’s immediate need to look at the plot of land.105 Therefore, this preliminary activity could not “be classified as ‘making arrangements for changes in care.’”106

97. 98. 99. 2006). 100. 101. 102. 103. 104. 105. 106.

Id. Id. See Overley v. Covenant Transp., Inc., 178 F. App’x 488, 490 (6th Cir. Id. Id. at 495. Id. Id. Id. Id. Id.

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Overley’s other activities, which included picking up her daughter’s laundry, making a preliminary visit with a funeral home, and visiting her daughter, were classified as “routine activities” that did “not qualify as ‘physical or psychological care’ under the FMLA, even under the broadest reading of the statute.”107 Because Overley failed to show “that she was ‘needed to care’ for her daughter . . . or that her activities qualified as [FMLA-protected] care,” she was not entitled to FMLA leave.108 f. Pilger v. D.M. Bowman, Inc. Charles Pilger requested leave to help his wife take her mother to the doctor, claiming that he could not find anyone to help his wife.109 Pilger’s wife had arthritis, which “prevented her from driving long distances or helping her mother in and out of the car and up and down steps.”110 Pilger claimed that he was afraid that if he did not take leave to assist his wife, she might “have an auto accident or fall trying to help her mother.”111 Although Pilger’s request was denied, he took time off work anyway, and he was terminated.112 The court reasoned that Pilger was not entitled to FMLA leave because the purpose of the trip was not for Mrs. Pilger’s medical care but instead for her mother’s.113 Pilger was not entitled to FMLA leave because providing care for parents-in-law is not protected under the FMLA.114 Pilger needed to provide ongoing care for his wife to be entitled to FMLA leave; however, his absence was “unrelated to Mrs. Pilger’s medical condition or basic needs.”115 Because this type of care was not contemplated by the FMLA, Pilger was not protected by the Act.116

107. Id. 108. Id. 109. Pilger v. D.M. Bowman, Inc., 833 F. Supp. 2d 489 (D. Md. 2011), aff’d, 521 F. App’x 307 (4th Cir. 2013). 110. Id. at 498. 111. Id. 112. Id. at 492. 113. Id. at 498. 114. Id. 115. Id. 116. Id.

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2. Cases Affording FMLA Protection a. Ballard v. Chicago Park District Beverly Ballard took time off work to travel with her terminally ill mother, whose end-of-life goal was to take a family trip to Las Vegas.117 While in Las Vegas, Ballard and her mother participated in typical tourist activities.118 Ballard served as her mother’s caretaker on the trip, performing activities such as administering medications and bathing and dressing her.119 Also, in order to procure her mother’s medication after a hotel fire, Ballard drove her to a hospital.120 The court reasoned that the FMLA’s text: does not restrict care to a particular place or geographic location. For instance, it does not say that an employee is entitled to time off “to care at home for” a family member. The only limitation it places on care is that the family member must have a serious health condition.121 The court was thus reluctant to read in another limitation that Congress had not provided.122 The court then noted that the mother’s basic medical, hygienic, and nutritional needs did not change while she was in Las Vegas, and that Ballard continued to assist her with those needs during the trip.123 In fact, Ballard’s presence “proved quite important indeed when a fire at the hotel made it impossible to reach their room, requiring Beverly to find another source of . . . medicine.”124 Thus, at the very least, Ballard provided physical care to her mother.125 Ballard’s employer argued that Ballard’s care needed to be connected to her mother’s ongoing medical treatment to qualify under the FMLA.126 But the court rejected this argument, reasoning 117. Ballard v. Chi. Park Dist., 741 F.3d 838, 839 (7th Cir. 2014), aff’g 900 F. Supp. 2d 804 (N.D. Ill. 2012). 118. Id. at 840. 119. Id. at 839–40. 120. Id. at 840. 121. Id. 122. Id. 123. Id. at 841. 124. Id. at 841–42. 125. Id. at 842. 126. Id.

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that neither the Department of Labor regulations nor the statute itself use the term “treatment” in their definitions of care.127 Instead, they: speak in terms of basic medical, hygienic, and nutritional needs—needs that, as in this case, do not change merely because a person is not undergoing active medical treatment. And it would be odd to read an ongoing-treatment requirement into the definition of “care” when the definition of “serious health condition” explicitly states that active treatment is not a prerequisite.128 Moreover, the court noted that if Ballard had sought leave to care for her mother in her hometown, her request would have fallen within the scope of the FMLA; also, if her mother had lived in Las Vegas and Ballard had cared for her there, her leave would have been covered by the FMLA.129 Therefore, Ballard’s activities constituted FMLA-qualifying care.130 b. Briones v. Genuine Parts Co. Julian Briones’s sixteen-month-old son, Calixto, became gravely ill and required hospitalization for several days.131 Because Briones’s wife needed to be at the hospital with Calixto, Briones took off work to stay at home with their three other healthy children.132 The employer argued that Briones was not entitled to FMLA leave because staying home to babysit three healthy children did not constitute care under the FMLA.133 But the court found Briones’s child-care activities to be within the scope of FMLA protection because Briones babysat his three healthy children only so that his wife could care for a child who did suffer from a serious health condition.134 The court reasoned that Briones would have been 127. Id. 128. Id. (citing 29 C.F.R. § 825.114(a)(2)(iv) (2008) (“[A] patient with a terminal illness may have a serious health condition so long as she is ‘under the continuing supervision of . . . a health care provider,’ even if she is ‘not . . . receiving active treatment . . . .’”)). 129. Id. at 843. 130. See id. 131. Briones v. Genuine Parts Co., 225 F. Supp. 2d 711, 712 (E.D. La. 2002). 132. Id. 133. Id. at 713. 134. Id. at 715.

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entitled to FMLA leave had he been at the hospital caring for Calixto himself instead of using leave to facilitate his wife fulfilling that role.135 Moreover, because a “literal reading of the FMLA makes it clear that Congress passed it to aid families when faced with a crisis such as the one faced by the Briones family,” the court concluded that the scope of the FMLA was broad enough to cover Briones’s care for his healthy children.136 II. COURTS NEED TO BROADEN THE INTERPRETATION OF FMLA CARE TO FULFILL FMLA POLICY GOALS While in some cases it is obvious that an employee has provided care for a seriously ill family member, a large number of cases involve situations that are not covered in the Department of Labor’s broad definition of “care.” Depending on the court, these gray-area situations can be interpreted narrowly or broadly. Although attempting to prevent placing excessive burdens on employers and to prevent potential employee abuse, narrow FMLA interpretations do not carry out the FMLA policy of “promot[ing] national interests in preserving family integrity.”137 The FMLA, a statute premised on the promise that employees will “never again have to choose between the job they need and the family they love,”138 should cover employees providing all types of care—not just the active medical treatment of a family member. A. The Typical Workplace Is Inflexible For working caregivers, balancing time between work and family needs can be nearly impossible. The normal work schedule leads to tension between the home and the workplace.139 Working parents find it difficult to make time “for school conferences; for doctor, dentist, and other appointments for their children; as well as for

135. Id. 136. Id. at 716. 137. 29 C.F.R. § 825.101(a) (2014). 138. Katharine B. Silbaugh, Is the Work-Family Conflict Pathological or Normal Under the FMLA? The Potential of the FMLA to Cover Ordinary Work-Family Conflicts, 14 WASH. U. J.L. & POL’Y 193, 194–95 (2004). 139. Nicole Buonocore Porter, Why Care About Caregivers? Using Communitarian Theory to Justify Protection of “Real” Workers, 58 U. KAN. L. REV. 355, 361 (2010).

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recitals, classes, and sporting events.”140 Many employees have far more caregiving responsibilities than just those owed to their children; they also must care for “spouses, parents, or other adult relatives who are ill, injured, or disabled.”141 But many workplaces do not allow enough flexibility for working caregivers to meet their obligations at home.142 Many employers—especially employers of low-income, nonprofessional workers—adopt strict attendance policies.143 The 2008 Study of National Employers found that most employers offer flexible work options to only a small portion of their employees, and even fewer employers offer these benefits to all employees.144 Some employers allow only six to eight absences or partial-day absences in an entire year.145 Furthermore, some employers allow for little or no time off for longer-lasting leaves of absence.146 As a result, many working caregivers find it “difficult, if not impossible, to meet their 140. Nicole Buonocore Porter, Synergistic Solutions: An Integrated Approach to Solving the Caregiver Conundrum for “Real” Workers, 39 STETSON L. REV. 777, 782 (2010) (citing Peggie R. Smith, Accommodating Routine Parental Obligations in an Era of Work-Family Conflict: Lessons from Religious Accommodations, 2001 WIS. L. REV. 1443, 1471 (2001)). 141. Id. 142. Susan Gerstenzang, The Best vs. The Rest, WORKING MOTHER, Oct. 2007, at 75, 78. While 58% percent of all companies allow flex-time, only 20% allow job sharing; 33% allow telecommuting on a part-time basis, and 38% allow a compressed workweek. Id. See also Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, EQUAL EMP’T OPPORTUNITY COMM’N (2009), http://www.eeoc.gov/policy/docs/caregiving.html (discussing the prevalence of employers’ inflexible policies). 143. Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1237–38 (1989). 144. See Ellen Galinsky et al., 2008 NATIONAL STUDY OF EMPLOYERS 12–13 (2008), http://familiesandwork.org/site/research/reports/2008nse.pdf. The study also noted that only 32% of employers let some employees change starting and ending times on a daily basis; only 3% of employers allow most employees to work regular hours from home occasionally; only 13% of employers let all or most employees shift between full-time and part-time hours within the same position; and only 45% percent of employers offer short periods of time off during the workday to attend family needs. Id. at 13–14. 145. See, e.g., Employment, MILLIKIN UNIV. FACILITY SERVS., http://www.campusdash.com/en-US/Facilities/MillikinUniv/ContactUs/ Employment.htm (last visited May 22, 2015). 146. Michael Selmi & Naomi Cahn, Women in the Workplace: Which Women, Which Agenda?, 13 DUKE J. GENDER L. & POL’Y 7, 15 (2006) (stating that 49% of the workforce does not receive any paid leave).

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employers’ very strict attendance policies, and hence may find themselves making the impossibly unfair choice between keeping their jobs and doing what is required to care for their families.”147 The issue is not limited to employers with demanding attendance policies: “Even in workplaces without strict attendance policies, high demands for face time make it difficult for caregivers to balance work and family.”148 Although working caregivers might be very productive and efficient while working, in part, from home, employers value employees primarily based on their time spent at work.149 Many companies use face time as a proxy for talent and productivity because they lack a system of formal evaluation.150 The typical American workplace does not provide enough suitable opportunities for working caregivers, or for employees in general, to care for their family members. The FMLA takes a step towards solving this problem. But when courts narrowly interpret the FMLA, they fail to protect employees who seek to balance this workfamily conflict. Courts should therefore more broadly interpret the FMLA to protect all methods of care in order to effectuate FMLA’s underlying policy goals. B. Work-Family Conflict Norms Are Changing The concept of the work-family conflict has intensified over the past few years. As increasing numbers of caregivers enter the workforce to help support their families, their balance between work and family becomes progressively more concerning.151 Recent changes in political discourse and in industry practice suggest “a link between [these] changes . . . and case outcomes with an examination of the distance we have traveled in the past” twenty years.152 These 147. Porter, supra note 139, at 785 (citing Pamela Gershuny, Family Values First When Federal Laws Collide: A Proposal to Create a Public Policy Exception to the Empoyment-At-Will Doctrine Based upon Mandatory Parenting Duty, 21 WIS. WOMEN’S L.J. 195, 195 (2006)). 148. Id. (citing Michelle A. Travis, Recapturing the Transformative Potential of Employment Discrimination Law, 62 WASH. & LEE L. REV. 3, 11 (2005)). 149. See generally Michelle A. Travis, Equality in the Virtual Workplace, 24 BERKELEY J. EMPL. & LAB. L. 283 (2003) (examining the push towards decentralization of the workplace via telecommuting and the perpetuation of gender inequality in the digital age). 150. Travis, supra note 148, at 16 (noting that the difficulty of assessing performance contributes to the misplaced reliance on time spent on work). 151. Gershuny, supra note 147, at 197. 152. Silbaugh, supra note 138, at 209.

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changes offer support for a broadened definition of FMLA care because they express concern for the working caregiver and thus support wider coverage of employees taking time off to care for their seriously ill family members. 1. Changes in Political Discourse Recent proposed legislation, some of which has been enacted, reflects these changing work-family conflict norms. In his 1999 State of the Union Address, President Clinton advocated for the expansion of the FMLA.153 Since that time, several bills have been introduced in both houses of Congress to extend FMLA coverage. In both the 106th and 107th Congresses, legislators introduced bills seeking to expand the activities covered by the FMLA to include participating in a child’s school or extracurricular activities,154 accompanying an elderly relative to a medical appointment,155 and caring for seriously ill family members outside of the traditional nuclear family.156 President Clinton’s 2001 budget included twenty million dollars to fund “competitive planning grants for states to study and develop wage-replacement programs for workers taking family leave.”157 Following President Clinton’s initiative, at least 15 153. ‘My Fellow Americans . . . State of Our Union is Strong,’ WASH. POST, Jan. 20, 1999, at A12. 154. See Time for Schools Act of 2001, S. 18, 107th Cong. § 522 (2001) (amending the FMLA to allow employees to take 24 hours of “school involvement” leave per year to participate in the academic activities of their children or to participate in literacy training); Time for Schools Act of 2001, H.R. 265, 107th Cong. § 522 (2001) (same); Time for Schools Act of 1999, S. 1304, 106th Cong. § 2 (1999) (same); Family and Medical Leave Act of 1993 Enhancement Act, H.R. 2103, 106th Cong. § 3 (1999) (amending the FMLA to allow employees to take up to 24 hours per year for “parental involvement leave” to participate in their children’s educational and extracurricular activities); Family and Medical Leave Improvements Act of 1999, H.R. 91, 106th Cong. § 3 (1999) (same). 155. See H.R. 2103 § 5 (amending the FMLA to allow employees to take up to 24 hours per year to assist elderly relatives); H.R. 91 § 3 (amending the FMLA to allow employees to take up to 24 hours per year of “elder care” leave to accompany an elderly relative to routine and medical employments). 156. See H.R. 2104, 106th Cong. § 1 (1999) (amending the FMLA to permit leave to care for a domestic partner, parent-in-law, adult child, sibling, or grandparent with a serious health condition). 157. Laura T. Kessler, The Attachment Gap: Employment Discrimination Law, Women’s Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory, 34 U. MICH. J.L. REFORM 371, 463–64 (2001) (citing Press Release, The White House, President Clinton Announces New Funds Enabling States to Provide

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states have introduced legislation that would expand unemployment insurance to cover family leaves.158 More recently, President Obama signed the Caregivers and Veterans Omnibus Health Services Act of 2010.159 This act provides different types of support for caregivers of wounded veterans, including a monthly stipend to compensate caregivers along with access to various caregiver support services, including mental health services, through the Civilian Health and Medical Program of the Department of Veterans Affairs.160 The Caregivers and Veterans Act is an important enhancement to work-family law because it acknowledges that family care is valuable work that deserves compensation and support. Additionally, another enhancement to work-family law was President Obama’s breastfeeding provision in the Affordable Care Act “[t]o encourage and support higher rates of breastfeeding . . . for federal employees and . . . requiring larger employers to do the same,” thus giving necessary support to working mothers.161 Using his executive authority, President Obama guaranteed that all federal employees who needed to express milk in a private place would be entitled to do so during as many unpaid breaks as necessary.162 Similarly, under the Affordable Care Act, all employers with 50 or more employees must provide “a reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk” and “a place, other than a bathroom, that is shielded from view Paid Leave to America’s Working Parents (Feb. 12, 2000), available at 2000 WL 150966). 158. Id. at 464. 159. Press Release, U.S. Dep’t of Veteran’s Affairs, New and Enhanced VA Benefits Provided to Caregivers of Veterans (Feb. 9, 2011), available at http.//www.va.gov/opa/pressrel/pressrelease.cfm?id=2048. 160. See Caregivers and Veterans Omnibus Health Services Act of 2010, Pub. L. No. 111-163, tit. 1, 124 Stat. 1130, 1132–40 (codified as amended at 38 U.S.C.A. § 1720G (Westlaw 2015)). 161. Kitchen, supra note 9, at 243–44. 162. See Barack Obama, Presidential Memorandum for the Director of the Office of Personnel Management, Delegation of Certain Functions and Authorities (Dec. 20, 2010), http://www.whitehouse.gov/the-press-office/2010/12/20/ presidential-memorandum-delegation-functions-and-authorities; John Berry, Director, Memorandum for Heads of Executive Departments and Agencies, Nursing Mothers in Federal Employment (Dec. 22, 2010), http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=3281.

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and free from intrusion from coworkers and the public . . . .”163 These policies make a limited contribution toward strengthening workfamily balance by easing the struggles of mothers who breastfeed their infants while working, but more comprehensive solutions remain necessary. In addition to this recent legislation, numerous bills have been proposed to further ease the work-family conflict faced by employed caregivers.164 Although these bills ultimately died before being signed into law, their proposal shows the growing concern surrounding the work-family conflict and a need for change. These proposed bills are a “strong symbolic acknowledgment” that the burdens of working caregivers are an important consideration.165 2. Changes in Industry Practice Human-resources departments at many employers now offer programs and expertise in work-family balance that were unheard of when the FMLA was first introduced.166 One human-resources group lists the following benefits that some employers now offer, many of which are family-oriented: work-life counseling, elder care, on-site

163. 29 U.S.C.A. § 207(r)(1) (Westlaw 2015). 164. See Pandemic Protection for Workers, Families, and Businesses Act, H.R. 4092, 111th Cong. (2009) (proposing paid sick leave so that employees could “address their own health needs, and the health needs for their families related to contagious illness”); Balancing Act, H.R. 3047, 111th Cong. (2009) (proposing extended FMLA-bonding-leave coverage for new parents and extended paid sick leave); Healthy Families Act, H.R. 2640, 111th Cong. (2009), S. 1152, 111th Cong. (2009), H.R. 1876, 112th Cong. (2011), S. 984, 112th Cong. (2011) (proposing a requirement of flexible paid sick leave for every 30 hours an employee works); Domestic Violence Leave Act, H.R. 2515, 111th Cong. (2009) (amending the FMLA to provide eligible employees with the right to take leave to care for a spouse, child, parent, or themselves, due to domestic violence, sexual assault, or stalking); FMLA Enhancement Act, H.R. 824, 111th Cong. (2009) (proposing extended FMLA job protection to millions more workers, and FMLA job-protected leave for “parental involvement”); Federal Employees Paid Parental Leave Act, H.R. 626, 111th Cong. (2009) (making the federal government a model employer and providing federal employees with four weeks of paid parental leave). 165. Kessler, supra note 157, at 466. 166. See LOTTE BAILYN ET AL., INTEGRATING WORK AND FAMILY LIFE 27–28 (2001), available at http://web.mit.edu/workplacecenter/docs/WorkFamily.pdf.

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childcare, lactation services, flexible-work consulting, financial education, and emergency back-up childcare, among others.167 The fact that human-resources departments are offering such programs demonstrates a change in cultural awareness of the workfamily conflict as well as an acceptance that working caregivers’ non-medical needs should be considered too. Moreover, it shows that employers are increasingly acknowledging the home-life demands of working caregivers, which suggests that employers would likely accept a broadened definition of FMLA care. III. COURTS SHOULD ADOPT A THREE-PART TEST FOR BETTER GUIDANCE IN FMLA CARE CASES Courts should take into account the underlying policy goals of the FMLA and adopt a broader approach to care that does not necessarily involve active medical treatment. The most effective way to broaden the approach is to adopt a carefully crafted test that would allow courts to produce consistent results. The test that this Comment proposes would afford FMLA protection for an employee’s leave to care for a seriously ill family member only if the following factors are met: (1) medical need, (2) intent to serve the medical need, and (3) likely conferral of a benefit on the ill family member. A. Why a New Test Is Needed Because the FMLA’s definition of “care” is “deceptively simplistic,”168 courts find it difficult to apply, especially in cases involving unconventional care. With no uniform test to apply, courts are forced to rely on their own interpretations of the statute. The varying statutory interpretations yield inconsistent results, depriving employers and employees of consistent guidance. Some courts narrowly interpret FMLA care in an attempt to avoid imposing burdens on employers and to avoid potential abuse by employees. These courts use a variety of narrow approaches including the proximity test, which excludes activities performed while not in “close and continuing proximity”169 to the family member in question. But these narrow interpretations do not 167. See Looking for Ways to Balance Your Career and Personal Life?, UNIV. MICH. WORK/LIFE RES. CTR., http://hr.umich.edu/worklife/docs/main-flier.pdf (last visited June 20, 2015). 168. Lindsey, supra note 14. 169. Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1047 (9th Cir. 2005).

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effectuate the FMLA’s policy of “preserving family integrity”170 and sparing employees from having to choose “between the job they need and the family they love.”171 These policy goals require a broader interpretation of “care” under which unconventional activities may invoke FMLA protection. Broad interpretations of care better effectuate FMLA policy by alleviating employment burdens for a wider range of employees. But these interpretations lack specific guidelines, relying solely on courts’ own intuitions. While these courts are correct in their analyses, they need a sharper, more effective way to evaluate FMLA care. The three-part test proposed by this Comment is ideal because it yields wide FMLA coverage while also requiring an in-depth analysis of an employee’s caregiving activities. Therefore, this test provides courts with uniform guidelines that will effectuate FMLA policy goals. B. A New Three-Part Test Care can take many different forms depending on the facts of each specific case. For this reason, the test proposed by this Comment does not define “care” based on any bright-line rule. Instead, this test would evaluate the mental and physical aspects of each activity to determine if it constitutes FMLA-protected care. Under this test, FMLA care would require three elements: (1) medical need, (2) intent to serve the medical need, and (3) likely conferral of a benefit on the ill family member. Together, these three elements logically demonstrate legitimate care. Under any reasonable analysis, intent to care for a need and actually benefitting that need constitutes legitimate care. Even unconventional activities, such as performing household chores, clearly constitute care if performed for the sole purpose of serving a need when the chores do, in fact, benefit that need. Therefore, any activity, no matter how unconventional, should plausibly invoke FMLA protection if it meets these requirements.

170. 29 C.F.R. § 825.101(a) (2014). 171. Silbaugh, supra note 138.

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1. Components of the Test a. Time-Sensitive Medical Need Employee leave is covered under the FMLA only when the care is “medically necessary.”172 The purpose of the FMLA is to protect employees “[w]hen a family emergency arises,”173 giving them “reassurance that they will not be asked to choose between continuing their employment, and meeting their personal and family obligations or tending to vital needs at home.”174 Therefore, for employees with family members who can take care of themselves or whose need for care can wait until after the confines of the workday, the FMLA should not provide protection. Department of Labor regulations discuss the meaning of an employee being “needed to care for” a family member: The medical certification provision that an employee is needed to care for a family member . . . encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care.175 The term “needed to care for” also includes “situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangements for changes in care, such as transfer to a nursing home.”176 Further, “[t]he employee need not be the only individual or family member needed to care for” the patient.177 For example, in Romans v. Michigan Department of 172. 29 U.S.C.A § 2612 (Westlaw 2015); see also Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86 (2002) (“Leave must be granted, when ‘medically necessary.’”); 29 C.F.R. § 825.202(b) (“[T]here must be a medical need for leave . . . .”). 173. 29 C.F.R. § 825.101(b). 174. Id. (emphasis added). 175. 29 C.F.R. § 825.124(a). 176. 29 C.F.R. § 825.124(b). 177. Id.

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Human Services,178 although the plaintiff’s sister was present at the hospital to care for the hospitalized mother, the court afforded FMLA protection for the plaintiff to leave work and also attend to his mother.179 The court reasoned that an employee was not required to be the only individual, or even the only family member, available to provide care to the mother. The court also reasoned that FMLA regulations did not require an employee to make a life-support decision without the help of other family members.180 An employee can thus easily prove that he or she was “needed to care for” a family member, especially considering that the family member in question must also have a serious health condition as defined by the FMLA. Discussing what constitutes a serious health condition under the Act would require a separate analysis, so this Comment will not examine that issue. Instead, for present purposes it can be assumed that employees will easily pass this prong of the test so long as they can prove that the medical need was time sensitive. Time-sensitive care cannot reasonably be provided before or after the employee’s workday; that is, the employee must be needed to care for his family member during working hours in order to meet the medical-need requirement. For example, in Lane v. Pontiac Osteopathic Hospital,181 the employee’s leave to clean the flooding in his mother’s house was not immediately required for his mother’s basic medical, hygienic, or safety needs; therefore, this activity did not constitute FMLA-qualifying care.182 Moreover, in Overley v. Covenant Transportation., Inc.,183 the employee’s meeting with the overseer of her daughter’s trust was not time sensitive and thus was not protected by the FMLA.184 b. Intent to Serve the Medical Need Most courts do not examine intent in FMLA-care analyses. In cases involving unconventional care, however, analysis of intent is crucial because unconventional activities are difficult to classify as care. Moreover, this prong is particularly important because it places a limit on employees’ FMLA coverage. For instance, an employee 178. 179. 180. 181. 182. 183. 184.

668 F.3d 826 (6th Cir. 2012). Id. at 831–32. Id. No. 09-12634, 2010 WL 2558215 (E.D. Mich. June 21, 2010). Id. at *5. 178 F. App’x 488 (6th Cir. 2006). Id. at 490.

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may care for a seriously ill family member without personally administering direct care. If an employee goes to the hospital for “mere visitation”185 of a patient undergoing serious surgery, the FMLA’s care provision should not be “automatically implicated.”186 Without having the intent to care for the patient during the hospital visit, the employee should not receive FMLA protection. Although this Comment argues for a broad interpretation of the statute in order to effectuate the policy of the FMLA, the Act “cannot be read so broadly that the concept of providing care is read out of the statute.”187 Other situations, however, when an employee merely visits an ailing family member can constitute FMLA-qualifying care. For example, in Plumley v. Southern Container, Inc.,188 the plaintiff spent time with his hospitalized father, who testified that his son’s presence was both comforting and reassuring.189 The court concluded that this activity sufficed to meet the threshold of psychological care under the FMLA.190 Moreover, in Brunelle v. Cytec Plastics, Inc.,191 a plaintiff’s father was hospitalized for severe burns.192 During the hospital stay, the plaintiff kept vigil at his father’s bedside.193 According to his father’s physician, the plaintiff helped the doctors make decisions concerning his father’s care.194 The court concluded that this activity constituted FMLA-qualifying care.195 Similarly, the court in Fioto noted that: a child’s offering comfort and reassurance to a bedridden parent qualifies as “caring for” the parent. Moreover . . . assisting in the making of medical decisions on behalf of that parent also qualifies as “providing physical or psychological care” within the meaning of FMLA regulations. Indeed, it seems . . . 185. Fioto v. Manhattan Woods Golf Enters., 270 F. Supp. 2d 401, 406 (S.D.N.Y 2003). 186. Id. 187. Id. 188. No. 00-140-P-C, 2001 WL 1188469 (D. Me. Oct. 9, 2001). 189. Id. at *9. 190. Id. 191. 225 F. Supp. 2d 67 (D. Me. 2002). 192. Id. at 71. 193. Id. at 72. 194. Id. at 77. 195. Id. at 82.

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that making medical decisions on behalf of an ailing parent is far more than psychological, and qualifies as assisting in the physical care of the parent.196 Therefore, while employees’ intent to serve their family members’ medical needs is difficult to determine, instances when an employee passively visits with his or her family member must be carefully examined. Such activity should not automatically allow an employee to meet the intent requirement. But if the employee’s visitation serves as either physical or psychological care, then the employee’s intent can properly be assumed. c. Likely Conferral of Benefit Along with the necessary time-sensitive medical need and intent to serve that need, an employee must prove a likely conferral of benefit. This prong is important because proving intent is not sufficient unless that intent is effectuated. According to the applicable Department of Labor regulations, the FMLA medical-certification provision “encompasses both physical and psychological care . . . [which] includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition . . . .”197 Furthermore, employees are entitled to FMLA protection for leaving work “to make arrangements for changes in care, such as transfer to a nursing home.”198 Therefore, in order to meet this third prong, employees must prove that their actions conferred at least a psychological benefit to the patient, whether related to the patient’s care or to changes in care. Moreover, the employee “need not be the only individual or family member available to care” for the patient.199 Some courts have used proximity to the family member as a bright-line rule to determine whether the employee was, in fact, caring for the family member in question.200 But defining care by mere proximity does not carry out the goals of the FMLA.201 The 196. Fioto v. Manhattan Woods Golf Enters., 270 F. Supp. 2d 401, 405 (S.D.N.Y. 2003). 197. 29 C.F.R. § 825.124(a) (2014). 198. 29 C.F.R. § 825.124(b). 199. Id. 200. See Baham v. McLane Foodservice, Inc., 431 F. App’x 345 (5th Cir. 2011); Tellis v. Alaska Airlines, Inc., 414 F.3d 1045 (9th Cir. 2005); Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078 (9th Cir. 2002). 201. 29 C.F.R. §825.124.

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FMLA defines care as encompassing “both physical and psychological care,”202 which includes “providing psychological comfort.”203 An employee may provide psychological comfort without being near the patient, such as by talking with the patient by telephone or other means of communication. Determining FMLAqualifying care using physical proximity alone is an archaic approach, especially considering the rapidly developing advancements in technology that allow individuals from across the world to speak to each other as if in person. The FMLA also covers family members needed “to make arrangements for changes in care, such as transfer to a nursing home.”204 Such arrangements can take shape in a variety of different ways, such as transferring the patient, preparing the new care site, or determining whether to continue treatment.205 If an employee likely conferred a benefit on the ill family member by providing actual care or making arrangements, then the FMLA should apply when the employee acted with intent to care for a time-sensitive medical need.206 2. Defense of the Test as the Best Way to Implement FMLA Policy Goals The test proposed in this Comment effectuates FMLA policy goals by affording wide coverage to eligible employees, including those providing care by unconventional methods.207 Moreover, by requiring an intent to serve a time-sensitive medical need and a likely conferral of benefit on the ill family member, the test logically pinpoints legitimate care before affording FMLA protection. Without this test, courts may still effectuate FMLA policy goals by broadly interpreting FMLA care.208 But doing so without specific guidelines may still yield inconsistent results, providing employers and employees with an unclear definition of care. Therefore, to increase fairness and consistency as well as to fulfill FMLA policy goals, courts need such a test to apply in FMLA disputes.209 202. 203. 204. 205. 206. 207. 208. 209.

29 C.F.R. § 825.124(a). Id. 29 C.F.R. § 825.124(b). Id. Id. See Lindsey, supra note 14. See id. See id.

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Further, withholding FMLA coverage from employees who prove these three elements defies the logical definition of “care.”210 Commonsensically, intent to care for a need and actually benefitting that need constitutes legitimate care.211 Therefore, requiring more than need, intent, and likely conferral of benefit is unrealistic and unfair. Indeed, narrow interpretations of FMLA care seek to alleviate employers’ burdens and prevent employee abuse; however, the proposed test’s intent requirement better ensures that employees have no ulterior motives.212 Moreover, while this test yields broad FMLA coverage, its requirements are not always easily met.213 Employees’ activities pass this test only when they are forced to miss work for the sole purpose of providing legitimate, beneficial care. Therefore, this test more effectively balances employment and family obligations by protecting only those employees who appear to effectively and purposely serve the needs of their families.214 C. Application of the Test to Existing Caselaw 1. Proximity Interpretations of Care The proximity test strictly limits FMLA care to activities performed in the physical presence of the ill family member. While proximity is an important consideration when examining FMLA care, it should not be the determinative factor. Defining “care” based solely on proximity improperly excludes many legitimate methods of care that warrant FMLA protection. Under this test, activities crucial to the family member’s condition lack FMLA protection if performed even just a few miles away from the family member. Alternatively, insignificant activities may invoke protection if performed in the family member’s presence. Moreover, under the proximity test, FMLA coverage for identical activities depends solely on the employee’s location. For example, employees performing household chores while in the proximity of

210. 211. 212. 213. 214.

See id. See id. at 570. See id. at 560. Id. See Glassman, supra note 5, at 837.

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the family member are covered,215 while those doing household chores while their family member is hospitalized are not.216 Clearly, the proximity test overgeneralizes FMLA care by disregarding legitimate care performed in the absence of ill family members. For this reason, courts should adopt a new test that relies on factors beyond mere proximity. The test proposed by this Comment thoroughly analyzes employee activities, performed with or without proximity, to afford FMLA protection for all legitimate types of care. a. Cases Refusing FMLA Protection i. Baham v. McLane Foodservice, Inc. In Baham, when the plaintiff’s daughter suffered serious head trauma, the plaintiff left the state where his daughter was undergoing surgery to return home to prepare their house for her arrival.217 These preparations included tending to the yard after neighbors’ complaints but also included cleaning the house and padding the furniture for his daughter’s safety.218 Still, because the plaintiff’s activities did not involve proximity to his daughter, the court found them to fall outside the scope of FMLA care.219 The plaintiff’s daughter met the medical-need requirement with her head trauma and surgery; she would obviously need care immediately after surgery.220 Therefore, the principal determination in this case would be whether the plaintiff had intent to care for his daughter when he was preparing the house.221 While tending to his yard, the plaintiff most likely did not have intent to care for his daughter because he was doing so in response to neighbors’ complaints.222 But cleaning the house and, at the very least, padding the furniture likely involved the requisite intent. The plaintiff would not have padded the furniture for other than the purpose of making the house safe for a patient with head trauma. Moreover, a clean house would be safer for the plaintiff’s daughter, especially if 215. 216. 2011). 217. 218. 219. 220. 221. 222.

See Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1088 (9th Cir. 2002). See Baham v. McLane Foodservice, Inc., 431 F. App’x 345, 349 (5th Cir. Id. at 346. Id. at 348–49. Id. at 349. Id. at 346. Id. Id.

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cleaning included moving obstructions or mopping slippery floors. Therefore, the plaintiff had the requisite intent in this case. The plaintiff also met the last prong of the proposed test because padding the furniture conferred a benefit on his daughter.223 Whether or not the daughter fell at home, padded furniture still made a reasonably safer environment for this head-trauma patient.224 To prove that cleaning the house also conferred a benefit on his daughter, the plaintiff would have to prove that doing so also created a safer environment for her. In any case, his activity of padding the furniture is enough to satisfy the last prong of the test. Therefore, the plaintiffâ&#x20AC;&#x2122;s activities, especially padding the furniture, most likely provided FMLA-protected care under this test.225 Denying FMLA coverage simply because he was away from his daughter is improper because if the plaintiff had padded the furniture while his daughter was in the home, the court would have held that his activities constituted FMLA-covered care.226 Whether or not the daughter was present in the home while the plaintiff performed his activities would not have changed the purpose of those activities in any way. Moreover, waiting to clean the home or pad the furniture until his daughter returned home could have been detrimental to her health because she could have fallen or struck her head before the plaintiff was able to install the safeguards. FMLA coverage of the plaintiffâ&#x20AC;&#x2122;s activities should not depend on his daughterâ&#x20AC;&#x2122;s being in the home when he performed them. ii. Tellis v. Alaska Airlines, Inc. In Tellis, the plaintiff took a trip several states away from his pregnant wife to retrieve a car after his own car broke down.227 He stayed in constant telephone contact with his wife throughout the trip during which his wife gave birth.228 The plaintiff claimed that his trip provided psychological comfort to his wife because having a working vehicle gave her reassurance.229 But the court applied the proximity

223. 224. 225. 226. 227. 228. 229.

See id. Id. at 347. Id. at 346. Id. at 349. Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1046 (9th Cir. 2005). Id. Id. at 1048.

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test, ultimately ruling that the plaintiff was not caring for his wife because he was not in close proximity to her.230 There was a time-sensitive medical need in this case because the plaintiff’s wife was about to give birth. Assuming the plaintiff’s sincere intent in retrieving the car was to psychologically comfort his wife, the relevant question in this analysis would be whether the plaintiff conferred a benefit on his wife through both his retrieving the car and his frequent phone calls. The plaintiff and his wife owned only one functioning car—the one that the plaintiff left to retrieve—so it is plausible that retrieving the car did provide some benefit to the plaintiff’s wife.231 There can be little doubt that plaintiff’s wife experienced psychological comfort from knowing that she had a working vehicle, especially after giving birth and thus having a greater need for transport.232 Moreover, the plaintiff’s conferral of a benefit could also be a physical one if a court were to find that other forms of transportation were difficult to come by. Therefore, it might be more than simply a benefit—but more of a necessity—for the plaintiff’s wife to have a working vehicle. If the plaintiff did confer a psychological benefit upon his wife by retrieving the car, then the plaintiff should have received FMLA protection.233 The court’s reasoning in Tellis is flawed because it assumes that a plaintiff cannot provide psychological—or even physical—care for an ill family member when away from that person.234 Under this reasoning, had the plaintiff traveled several states away to retrieve his wife’s medicine, the court would refuse FMLA protection simply because the plaintiff was away from his wife.235 Surely, traveling to retrieve needed medicine would confer both a physical and psychological benefit on the ill family member. The same can be said about retrieving a working vehicle for the mother of a new baby. iii. Alsoofi v. Thyssenkrupp Materials NA, Inc. In Alsoofi, the plaintiff accompanied his sister to Yemen because, according to their customs, she was required to travel with a male

230. 231. 232. 233. 234. 235.

Id. See id. at 1046. See id. See id. at 1046–47. See id. at 1048. See id.

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family member.236 The plaintiff had taken off work to care for his seriously ill mother; however, at the last minute, he was chosen to travel with his sister because the family member scheduled to travel with her had to undergo emergency surgery.237 While in Yemen, the plaintiff attended to his sister’s wedding and visited family and friends; he also communicated with his mother, but he did not speak to any doctors or make any medical decisions.238 The court determined that although the plaintiff’s travelling with his sister might have provided some psychological comfort to his mother, he was not protected by the FMLA because he did not meet the closeand-continuing-proximity requirement.239 Because the plaintiff’s mother was seriously ill and required a full-time caretaker, the medical-need requirement in this case was met.240 The other two prongs of the test may also be met, depending on how much the plaintiff’s sister’s trip affected the seriously ill mother psychologically. If concerns about the sister’s safety had a serious psychological effect on the mother, then the plaintiff’s travelling with his sister could invoke FMLA coverage if he could prove that his intent was to provide a psychological benefit to his mother. The plaintiff would need to prove—through testimony or otherwise—that the purpose for his trip was more about providing psychological comfort for his mother and less about helping his sister abide by their customs. Moreover, the plaintiff would need to prove that travelling with his sister, and perhaps his phone calls to his mother, did in fact provide her with psychological comfort. The proximity test in this case again fails to consider the psychological effect of activities performed while not in the ill family member’s proximity.241 Although there is only a slight chance that the plaintiff would be protected by the FMLA under the three-prong test, the proximity test immediately excludes this plaintiff, even if his exclusive purpose for the trip was to provide psychologically care for his mother.

236. Alsoofi v. Thyssenkrupp Materials NA, Inc., No. 09-CV-12869, 2010 WL 973456, at *1 (E.D. Mich. Mar. 15, 2010). 237. Id. 238. Id. 239. Id. at *5–6. 240. Id. at *4. 241. See id. at *5–6.

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iv. Boecken v. Gallo Glass Co. In Boecken, the plaintiff on several occasions left work and, instead of immediately going home to care for his ill grandmother, went to a local park to take walks.242 The plaintiff admitted that he was not providing care for his grandmother during these walks but instead was relieving his own stress.243 The court concluded that because he was not in close and continuing proximity with his grandmother during these walks, the plaintiff was not providing FMLA-protected care.244 Because the plaintiff’s grandmother was very old and had a chronic disease, the medical-need requirement in this case was met. But the intent-to-care prong of the proposed test was not met. The plaintiff was indeed attempting to relieve his own stress while walking in the park; however, these walks involved the plaintiff’s intent to care for himself, not for his seriously ill grandmother. Moreover, the plaintiff was not conferring a benefit upon his grandmother, which the plaintiff conceded when he admitted that he was not providing care. Therefore, the plaintiff in Boecken failed all prongs of the test. Although the court in Boecken correctly refused to afford FMLA protection for the plaintiff’s walks, it did so for the wrong reasons. Instead of evaluating the plaintiff’s activities as a whole, the court looked only to the fact that the plaintiff was not in the physical presence of his grandmother. Under the proximity test, had the plaintiff been walking to the pharmacy to pick up his grandmother’s medication, for example, he would likely be refused FMLA coverage. Therefore, the proximity test, although producing the correct result, was insufficient in its application. b. Cases Affording FMLA Protection i. Scamihorn v. General Truck Drivers In Scamihorn, the plaintiff took off work to move to his severely depressed father’s hometown.245 The plaintiff talked daily with his father, performed various chores around the house, and drove his

242. Boecken v. Gallo Glass Co., No. 1:05-cv-00090-OWW-DLB, 2008 WL 4470759, at *3 (E.D. Cal. Sep. 30, 2008). 243. Id. at *4. 244. Id. at *10–11. 245. Scamihorn v. Gen. Truck Drivers, 282 F.3d 1078, 1080 (9th Cir. 2002).

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father to counseling sessions.246 The court found that because the plaintiff’s activities contributed to his “constant presence in his father’s life,”247 the plaintiff was entitled to FMLA protection. The court did not explicitly note that this “constant presence” was a physical one; however, all of the plaintiff’s activities involved close proximity to his father.248 The plaintiff’s father met the medical-need requirement because of his severe and crippling depression, and because he testified that he needed the plaintiff by his side “full time.”249 Additionally, the plaintiff also met the intent requirement because, as the court noted, the plaintiff “moved to his father’s hometown precisely to be a part of his treatment.”250 Also, the plaintiff met the likely-conferral-ofbenefit requirement because his daily talks with his father about his depression aided his father psychologically. The plaintiff’s chores around the house also comforted his father, thereby amounting to psychological care. Therefore, the plaintiff was protected by the FMLA. While the court in Scamihorn correctly categorized the plaintiff’s activities as FMLA-protected care, it did so only because these activities were performed in the physical presence of his father. Had the plaintiff performed the various chores around the house while his father was away, the court likely would not have found the chores to be protected, even if it was proven that the father benefitted psychologically from the plaintiff’s chores. Moreover, had the plaintiff talked daily with his father over the phone about his depression, the court likely would not have provided FMLA coverage. But simply hearing from the plaintiff could have greatly benefitted the plaintiff’s father psychologically. Therefore, while the Scamihorn court reached the correct decision, it should have used a test more effective than the proximity test. 2. Other Interpretations of Care Other than the proximity test, many courts use a variety of different approaches to narrowly interpret the FMLA. These narrow interpretations frequently exclude employees providing unconventional care, even when such care is legitimate. Thus, 246. 247. 248. 249. 250.

Id. at 1087. Id. at 1088. See id. at 1087–88. Id. Id. at 1088.

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narrowly interpreting care does not effectuate FMLA work-family balancing goals because it excludes employees needed by their families to provide legitimate care. Alternatively, some courts broadly interpret the FMLA to cover unconventional care. These interpretations best effectuate the FMLA’s policy goals by alleviating the burdens of work for employees providing any legitimate care. But while correct in their decisions, these courts lack clear guidelines to regulate their analyses. Instead, they afford or deny FMLA protection by relying on their own intuitions and varying statutory interpretations. Determining FMLA care without any specific guidelines poses a risk of inconsistency and unfairness in FMLA disputes and provides employers and employees with no clear and reliable definition of “care.” Therefore, all courts need a guiding test for FMLA-care disputes, including courts that are properly using a broad interpretation of care. a. Cases Refusing FMLA Protection i. Overley v. Covenant Transport, Inc. In Overley, the plaintiff took off work to visit her severely disabled daughter in an assisted-living home.251 The plaintiff also met with a possible overseer of her daughter’s trust and visited a vacant lot being considered for the construction of her daughter’s future residence.252 She spent the remainder of the day making a preliminary visit to a funeral home and doing her daughter’s laundry.253 The court found that the plaintiff failed to show either that she was “needed to care for” her daughter or that her activities constituted FMLA-qualifying care.254 The plaintiff testified that the meeting was not time sensitive, and the record gave no indication of an immediate need to look at the plot of land.255 Moreover, the court classified the remaining activities—picking up the laundry, visiting the funeral home, and checking on her daughter’s care and condition—as “routine activities” that failed to qualify as FMLA care.256 251. 252. 253. 254. 255. 256.

Overley v. Covenant Transp., Inc., 178 F. App’x 488, 490 (6th Cir. 2006). Id. Id. Id. at 495. Id. at 490, 495. Id. at 495.

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Although the daughter’s severe disability likely meets the medical-need requirement, most of the plaintiff’s activities do not meet the first prong of the test because they lack time-sensitivity. The plaintiff testified that her meeting was not time-sensitive; her visit to the plot of land and preliminary funeral-home visit likely lack timesensitivity as well. Cleaning her daughter’s laundry is also not likely an urgent need. The court, however, incorrectly glanced over the plaintiff’s visit with her daughter, classifying it as “routine.”257 While her daughter’s condition probably did not require the plaintiff’s urgent visit, the court should have more thoroughly analyzed the visit before dismissing it as unnecessary. The daughter’s condition might have required her mother’s immediate presence; for example, the plaintiff could have possessed urgently-needed medication, or her daughter could have urgently needed her mother for psychological reasons. If the plaintiff visited her daughter with intent to alleviate the daughter’s condition and her presence benefited her daughter, the FMLA should have protected the visit. Absent these extenuating circumstances, the court likely reached the correct result, but its shallow analysis of the plaintiff’s activities demonstrates the danger of evaluating FMLA care without specific guidelines. Without a clear test, courts risk refusing FMLA protection to deserving employees who provide legitimate care. b. Cases Affording FMLA Protection i. Ballard v. Chicago Park District In Ballard, the plaintiff took time off work to travel with her terminally ill mother to Las Vegas.258 While in Las Vegas, the two “participated in typical tourist activities.”259 The plaintiff also served as her mother’s caretaker on the trip by administering her medications, draining fluids from her heart, and bathing and dressing her.260 The court afforded FMLA protection, noting that during the trip the plaintiff continued to assist her mother with her basic needs, which did not change while they were in Las Vegas.261 Therefore, the

257. 258. 259. 260. 261.

Id. Ballard v. Chi. Park Dist., 741 F.3d 838, 840 (7th Cir. 2014). Id. Id. at 839–40. Id. at 841.

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court found that, at the very least, the plaintiff provided physical care to her mother.262 In this case, the medical-need requirement was met because the plaintiff’s mother was terminally ill and needed someone to act as her caretaker. Intent to serve the medical need was also demonstrated because in administering her mother’s medications, draining fluids from her heart, and other similar activities, the plaintiff was obviously doing so with intent to care for her mother. The plaintiff also satisfied the possible-conferral-of-benefit prong because her activities clearly conferred a benefit on her mother. Certainly, the three-prong test does not account for the fact that the plaintiff and her mother were on a trip to Las Vegas. As the court in Ballard noted, there is nothing in the FMLA that requires care in a particular geographic location.263 Therefore, although the plaintiff and her mother were engaged in tourist activities while on the trip, the plaintiff should still be covered by the FMLA. ii. Briones v. Genuine Parts Co. In Briones, the plaintiff took time off work to stay with his three healthy children when his wife was needed at the hospital to care for their other sick child.264 Although the plaintiff was caring for three children without serious health conditions, the court found that he was covered by the FMLA because he was doing so only to fill in for his wife, who was caring for a child who did suffer from a serious health condition.265 In this case, the medical-need requirement was met by the condition of the sick child, who required immediate care. It is irrelevant that the other three healthy children were healthy because the plaintiff was caring for them only to fill in for his wife, who was caring for the sick child.266 Moreover, the second and third prongs of the test are met because the plaintiff clearly took time off work with intent to care for his children so that his wife could go to the hospital, and in doing so, he conferred a benefit to his sick child by allowing his wife to care for the child.

262. 263. 264. 265. 266.

Id. at 842. Id. at 840. Briones v. Genuine Parts Co., 225 F. Supp. 2d 711, 712 (E.D. La. 2002). Id. at 715–16. See id. at 715.

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CONCLUSION Courts must consider the underlying policy goal of the FMLA, which is to aid working caregivers in balancing their employment obligations and their familyâ&#x20AC;&#x2122;s needs. While many courts have done so by broadly interpreting the FMLA to cover unconventional care, their reasoning relies on judgesâ&#x20AC;&#x2122; own intuitions and understanding of the FMLA rather than uniform guidelines, thereby yielding inconsistent results. In order to create consistency and to effectuate FMLA policy, courts need a guiding test that produces broad FMLA coverage for employees. The test this Comment proposes meets these requirements by thoroughly evaluating each aspect of care and by broadly covering employees providing unconventional care. Accordingly, courts can more easily decide FMLA care disputes, the results of such disputes will be more consistent, and the FMLA will fulfill its goals by allowing employees to more easily balance their work and family obligations.

COMMENT ADDRESSING THE NEEDS OF OVERLOOKED VICTIMS: PROVIDING CHILD SUPPORT FOR CHILDREN OF HUMAN TRAFFICKING VICTIMS CRISTINA SOLIS* TABLE OF CONTENTS INTRODUCTION ................................................................................... 78 I.BACKGROUND .................................................................................. 79 A. Evolution of Federal Human Trafficking Legislation ........ 80 B. State’s Call to Action: Florida’s Response to a Trafficking Epidemic........................................................... 83 C. Resources and Remedies Available to Rescued Victims Other Than Criminal Prosecution of the Trafficker ............................................................................ 84 II.ANALYSIS ..................................................................................... 87 A. Development of a Child Support Program for Victims ...... 89 B. Addressing Legislative Qualms: Who, What, How, When? ................................................................................. 93 CONCLUSION ..................................................................................... 95

* Cristina D. Solis is a J.D. Candidate at Western Michigan University Thomas M. Cooley Law School in Riverview, Florida. She received her Bachelor of Arts in Political Science and English Literature from the University of South Florida in 2013. Miss Solis currently serves as the Publicity Editor on the Western Michigan University Thomas M. Cooley Law Review and as the Treasurer for the LGBTQA at Cooley Law School Tampa Bay. Special thanks go to Professor Carly Self for her guidance throughout the editing process. Special thanks also go to Professor Stevie Swanson for sharing her passion and commitment to end human trafficking, her guidance and help with the editing process, and for her mentorship.

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INTRODUCTION “The great thought of captains, owners, consignees, and others was to make the most money they could in the shortest time possible. Human nature is the same now as then.”1 - Frederick Douglass When Frederick Douglass wrote these words in 1871, he could not have imagined that slavery would remain a prevalent problem through the twenty-first century. In fact, few realize that there are more men and women enslaved in the world today than during the entire transatlantic slave trade.2 Human trafficking is modern day slavery, and the trafficker’s goal today is the same as the slave owner’s nearly 300 years ago—to make a substantial profit while investing as little money as possible into human labor. Awareness and activism for victims of human trafficking has increased in the past decade, but one group of victims is consistently overlooked: the children of domestic sex-trafficking victims. No laws or resources are committed to specifically addressing the needs of children born to sex-trafficking victims.3 Traditional resources that many single mothers depend on to support their children are often inaccessible to mothers who are victims of human trafficking. The most prevalent of these resources is child support. Victims service an average of 10 to 15 people per day who pay for sex (“Johns”), making it nearly impossible to establish a child’s paternity, which is required to collect child support.4 Even in the unlikely event that 1. Frederick Douglass, THE NEW NATIONAL ERA (D.C.), August 17, 1871, as cited in KEVIN BALES & RON SOODALTER, THE SLAVE NEXT DOOR: HUMAN TRAFFICKING AND SLAVERY IN AMERICA TODAY 3 (2009). 2. POLARIS PROJECT, HUMAN TRAFFICKING TRENDS IN THE UNITED STATES: NATIONAL HUMAN TRAFFICKING RESOURCE CENTER 2007-2012, at 4 (2013), available at https://na4.salesforce.com/sfc/p/#300000006E4S/a/600000004TLG/ f7PldVCtt4Irtx_iljKxiGsERUTm6PUfmNxj9ijA6Sg; KEVIN BALES, DISPOSABLE PEOPLE: NEW SLAVERY IN THE GLOBAL ECONOMY 9 (2004). 3. Cf. 2014 State Ratings on Human Trafficking Laws, POLARIS PROJECT, http://www.polarisproject.org/what-we-do/policy-advocacy/national-policy/stateratings-on-human-trafficking-laws (last visited July 11, 2015) (categorizing all state laws and policies into 10 areas, none of which include or address the needs of victims’ children). 4. Sex Trafficking: Common Myths, WASH. STATE OFFICE OF THE ATT’Y GEN., http://www.atg.wa.gov/sex-trafficking (last visited June 30, 2015) (citing an investigation by Shared Hope International).

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paternity is established, the probability that a victim will be able to enforce a court-ordered judgment against a John is slight. This Comment addresses federal and state legislative acts with an emphasis on Floridaâ&#x20AC;&#x2122;s state laws. Reforming forfeited-asset legislation in Florida can create an accessible, viable, and selfsustaining resource for sex-trafficking victims with children. Part I examines human trafficking and its emergence as a prominent crime in the United States and provides an overview of the current remedies available to victims. Part II shows how current assistance programs fail to provide adequate relief to victim-mothers and offers a viable alternative to traditional assistance programs. In conclusion, this Comment advocates developing specific legal remedies that will better address the needs of human-trafficking victims and their children. I.

BACKGROUND

Although slavery was abolished in 1865 when the Thirteenth Amendment was ratified, slavery in the form of human trafficking is still rampant and is arguably worse today than any abolitionist could have predicted. While slaves in the 1800s had a life expectancy of 16 years once enslaved, human-trafficking victims are expected to live for only seven years once they enter the trafficking industry.5 Purchasing a slave in the 1800s cost the equivalent of $40,000 today, while the current cost of purchasing a human-trafficking victim is only $90.6 And while slavery in the 1800s targeted one specific racial group, modern human trafficking does not discriminate.7 There are currently over 100,000 people trafficked in the United States and an estimated twenty-seven million people trafficked worldwide.8 As Professor Stevie Swanson, who teaches law students about slavery and human trafficking, stated, â&#x20AC;&#x153;Awareness that the

5. What Is Human Trafficking?, CHILD RESCUE NETWORK, http://childrescuenetwork.org/know-the-facts/human-trafficking/what-is-humantrafficking/ (last visited July 23, 2015). 6. Slavery Today, FREE THE SLAVES, http://www.freetheslaves.net/aboutslavery/slavery-today/ (last visited July 23, 2015). 7. BALES & SOODALTER, supra note 1, at 6. 8. Jill Dougherty, State Department Report Ranks Countries on Human Trafficking, CNN (June 27, 2011, 3:16 PM), http://www.cnn.com/2011/POLITICS/ 06/27/human.trafficking/.

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problem exists is the first challenge.”9 Every U.S. state has reported some type of human trafficking within its borders,10 and yet the 2010 Human Trafficking Persons Report indicated that less than 1% of victims are ever identified.11 Each subsequent report has addressed how to overcome difficulties identifying victims.12 While slavery in the 1800s was clearly visible, human trafficking rarely is identifiable; it is a covert crime that conducts its business in the shadows of society and outside the law. Inevitably, difficulty in identifying victims leads to an even greater challenge in prosecuting traffickers and buyers, leaving many traffickers “operating with impunity.”13 A.

Evolution of Federal Human Trafficking Legislation

To understand the evolution of state human-trafficking laws, it is important to address the development of the federal legislation that influenced the states. The first legislative act that attempted to address human trafficking was the Mann Act of 1910.14 Its intent was to “outlaw the transportation of women across state lines for the purpose of prostitution.”15 But the expectation that this act would stifle commercial sex was idealistic at best. Courts focused primarily on one particular phrase in the Act—immoral purpose—and used a broad application of that phrase to conduct a moral and social crusade.16 For example, one of the most frequent uses of the law was to prosecute women in interracial relationships, which shifted the focus away from the law’s original intent.17 Ultimately, the Mann Act failed to deter human trafficking and the commercialization of sex.

9. Stevie Swanson, Assoc. Professor, W. Mich. Univ. Thomas M. Cooley Law Sch., Address at the W. Mich. Univ. Law Sch. Panel Discussion: FIGHT: Human Trafficking (Nov. 5, 2014). 10. POLARIS PROJECT, supra note 2. 11. See DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 4 (2010), available at http://www.state.gov/documents/organization/142979.pdf. 12. See DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 8 (2013), available at http://www.state.gov/documents/organization/210737.pdf. 13. Id. 14. DAVID A. LANGUM, CROSSING OVER THE LINE: LEGISLATING MORALITY AND THE MANN ACT 117 (1994). 15. See Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 YALE L.J. 756, 787–88 (2006). 16. LANGUM, supra note 14. 17. Id.

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For nearly 90 years after the enactment of the Mann Act, humantrafficking crimes were under-prosecuted, primarily due to a need for legislation that explicitly addressed the crime.18 Many who tried to prosecute human traffickers attempted to use existing laws that addressed rape, kidnapping, pandering, and smuggling.19 But unlike smuggling and kidnapping, which only address the forced movement of a person, 20 human trafficking involves the added element of severe sexual abuse. Human trafficking is distinctly different from smuggling and kidnapping.21 As part of an international initiative by the United Nations to combat human trafficking, the United States passed the Trafficking Victims Protection Act of 2000 (“TVPA”)22 and its subsequent revisions in 2003, 2005, 2008, and 2013.23 The Act was signed into law by President Bill Clinton on October 28, 2000, and became the first legislation since the passage of the Mann Act in 1910 to

18. See BALES & SOODALTER, supra note 1, at 10. 19. See id. at 199; AMY FARRELL ET AL., IDENTIFYING CHALLENGES TO IMPROVE INVESTIGATION AND PROSECUTION OF STATE AND LOCAL HUMAN TRAFFICKING: EXECUTIVE SUMMARY, 8 (2012), available at http://www.in.gov/ icw/files/412592-State-and-Local-Human-Trafficking-Cases.pdf. 20. See FLA. STAT. ANN. § 787.01 (Westlaw 2015). Kidnapping means a person was moved “forcibly, secretly, or by threat, confining, abducting, or imprisoning another person against her or his will without legal authority.” The statute does not, however, address sexual battery of a victim, such as in trafficking. 21. HUMAN SMUGGLING & TRAFFICKING CTR., U.S. DEP’T OF STATE, FACT SHEET: DISTINCTIONS BETWEEN HUMAN SMUGGLING AND HUMAN TRAFFICKING 12 (2006), available at http://www.state.gov/documents/organization/90541.pdf. Human smuggling is a criminal transaction between two willing parties whereas human trafficking is profiting through exploitation of a victim. Unlike human smuggling, human trafficking does not involve consent. Victims are forced, coerced, or recruited by fraud. Moreover, unlike smuggling that has an element of movement, a human trafficking victim does not need to cross state lines. See id. 22. Kara C. Ryf, Note, First Modern Anti-Slavery Law: The Trafficking Victims Protection Act of 2000, 34 CASE W. RES. J. INT’L L. 45 (2002); Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, §§ 101-113, 114 Stat. 1466 (codified as amended at 22 U.S.C.A. §§ 7101-7113 (Westlaw 2015)). 23. Trafficking Victims Protection Reauthorization Act of 2003, Pub. L. No. 108-193, 117 Stat. 2875; Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. No. 109-164, 119 Stat. 3558 (2006); William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, 122 Stat. 5044; Violence Against Women Reauthorization Act of 2013, Pub. L. No. 113-4, tit. XII, 127 Stat. 54, 136–60.

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specifically and comprehensively address the growing humantrafficking issue.24 Claiming to “ensure just and effective punishment of traffickers, and to protect their victims,” the 2000 TVPA focused almost exclusively on international trafficking victims.25 For example, the Act “require[d] the U.S. State Department to prepare a report evaluating foreign governments’ efforts to combat [human] trafficking.”26 The Act sought to minimize “the appeal of trafficking by enhancing the economic opportunities available” in the victim’s home country.27 It also allocated funds to create programs that increase trafficking awareness, and finally, it “establishe[d] minimum standards countries should implement to eliminate trafficking.”28 But the 2000 TVPA did not address how to prevent and deter human trafficking within the borders of the United States. Another major goal of the TVPA was to redefine the trafficked person as a victim, rather than an illegal alien.29 But the TVPA did not redefine domestically trafficked persons as victims instead of criminals, which stifled identification and rescue efforts within the United States.30 While the TVPA is a commendable effort to curb international human trafficking, it fails to address domestic human trafficking. Compared to the scope and size of the problem domestically, foreign victims get a much greater share of assistance, because the TVPA earmarks federal money for foreign victims only.31 As quoted in The Slave Next Door, Dorchen Leidholdt “suspects that there’s a higher incidence of domestic than international [trafficking] . . . largely because it’s become so hard these days to cross the borders—and I think it’s being largely ignored.”32 Although the TVPA did help raise awareness within the United States, it fell short of actually addressing the domestic trafficking problem.33

24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

Ryf, supra note 22, at 53. Id. Id. Id. Id. at 54. Id. at 57. Id. BALES & SOODALTER, supra note 1, at 103. Id. at 102. See id. at 103.

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State’s Call to Action: Florida’s Response to a Trafficking Epidemic

Since the passage of the TVPA and its subsequent reauthorizations, the focus has shifted from a federal approach to a state-centered method to combat human trafficking. Legislative efforts in Florida provide a good example of how states with a high volume of human trafficking have addressed the problem. Florida has the third-highest rate of human trafficking, preceded only by New York and Texas.34 In 2004, Florida took its first legislative steps towards addressing human trafficking within its borders by expanding existing laws to offer victims more protection.35 The Florida Legislature amended chapters 787, 796, and 895 of the Florida Statutes to directly address human trafficking.36 The newly amended statutes made it a first-degree felony to engage in sex trafficking of minors but failed to address the prevention of future human trafficking.37 Later, in 2006 and 2012, Florida amended these laws further to broaden the definition of human trafficking, which now includes all forms of coerced commercialization of sex and provides guidelines for deterring traffickers.38 In addition, a 2007 amendment to section 787.06 included a new training requirement for law-enforcement officers. For initial certification, officers must now complete training on human-trafficking crime prevention and investigation.39 Since its first step in 2004, Florida has also made significant strides developing stricter punishments that match the severity of the 34. Stevie Swanson, Letter of the Day: More Needs to be Done for Victims of Human Trafficking, THE TAMPA TRIB., July 27, 2014, http://tbo.com/list/newsopinion-letterday/letter-of-the-day-more-needs-to-be-done-for-victims-of-humantrafficking-20140727/. 35. Act of July 16, 2004, 2004 Fla. Laws ch. 2004-391 (codified in scattered sections of the Florida Statutes). Prior to the enactment of the 2004 legislation, older laws made forcing a person to become a prostitute punishable as a thirddegree felony. See FLA. STAT. ANN. § 796.04 (Westlaw 2015). 36. Act of July 16, 2004 §§ 1–5. 37. See id. § 3. 38. See Act of June 12, 2006, sec. 1, § 787.06(2)(b), 2006 Fla. Laws ch. 2006168 (defining “forced labor or services” to include obtaining labor or services, including sexual exploitation, by means of threats, isolation, unlawful confinement, unlawful lending or credit methods, confiscation of identity documents, and any other form of fraud or coercion). 39. See id. § 787.06(4).

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crime. As first-degree felonies, all forms of human trafficking carry the possibility of imprisonment for 30 years and fines up to $10,000.40 Moreover, Florida’s human-trafficking statute provides for forfeiture of any “real or personal property that was used, attempted to be used, or intended to be used” in the commission of the crime.41 C.

Resources and Remedies Available to Rescued Victims Other Than Criminal Prosecution of the Trafficker

As legislation was developed to address human trafficking, it quickly became apparent that there was an equal need for post-rescue resources. Thus, the Palermo Protocol was born, advocating for the 3Ps: Prevention, Prosecution, and Partnership.42 The Palermo Protocol urged states to focus as fervently on providing protection through post-rescue resources for victims as they do on prosecutorial legislation.43 Although some states have taken the initiative to create more resources and to provide greater access to those resources, the majority of states have failed to act, leaving many victims in the same vulnerable position as when they were trafficked. Eradicating human trafficking and helping victims effectively transition to survivors requires the legal community, law enforcement, and social-services programs to work interdependently to provide victims with recovery resources.44 The American Bar Association suggests that the best method of approaching humantrafficking cases is to take a “holistic approach.”45 This approach is suggested because these victims’ needs are considered the “among 40. See FLA. STAT. ANN. §§ 787.06, 775.082(3)(b)(1), 775.083(1)(b) (Westlaw 2015). 41. FLA. STAT. ANN. § 787.06(7) (Westlaw 2015). 42. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, Supplementing the United Nations Convention against Transitional Organized Crime, Annex 2, Nov. 15, 2000, 2237 U.N.T.S. 319, 346–47, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/ ProtocolTraffickingInPersons.aspx. 43. Id. at 345–46. 44. JEAN BRUGGEMAN & ELIZABETH KEYES, MEETING THE LEGAL NEEDS OF HUMAN TRAFFICKING VICTIMS: AN INTRODUCTION FOR DOMESTIC VIOLENCE ATTORNEYS AND ADVOCATES 6 (Amanda Kloer et al. eds., 2009). 45. What We Do, A.B.A. CENTER FOR HUMAN RIGHTS, http://www.americanbar.org/groups/human_rights/projects/task_force_human_traff icking/whatwedo.html (last visited August 4, 2015).

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most complex of crime victims.”46 They need medical and mental health care for severe trauma, a safe place to live, protection from their traffickers and economic empowerment. Furthermore, victims may require legal services to address family law, immigration, and public benefits concerns, as well as criminal defense.47 For victims, accessing any type of help can be challenging for a number of reasons.48 Victims may face obstacles when they try to prove essential elements of their legal cases against their perpetrators.49 For example, traffickers often confiscate victims’ identification, such as a social security card, and their money.50 By stripping victims of their identities, traffickers are able to keep their victims captive without necessarily restraining their freedom of movement. In some situations, a pimp will threaten a victim’s family rather than physically restrain the victim to ensure that the victim remains under the pimp’s control. Unfortunately, without physical restraint, proving force or coercion is challenging and makes prosecuting the trafficker very difficult. Without proving these essential elements of the crime, a victim will be barred from legal relief. Under section 772.104 of the Florida Statutes, a victim can recover compensatory damages from her abuser if she can prove she is a victim of a human-trafficking crime.51 The statute allows a victim to recover three times the amount the trafficker gained by trafficking the victim.52 Considering that a victim is expected to service 10 to 15 Johns per day, grossing roughly $500 to $1000 a day, it would seem that a victim could recover as much as $1 million.53 But satisfying

46. The Victims, POLARIS PROJECT, http://www.polarisproject.org/humantrafficking/international-trafficking/242-the-victims (last visited July 14, 2015). 47. Id.; Dorchen A. Leidholt, Human Trafficking and Domestic Violence A Primer for Judges, 52 JUDGES’ J., no. 1, 2013, available at http://www.americanbar.org/publications/judges_journal/2013/winter/human_traffi cking_and_domestic_violence_a_primer_for_judges.html. 48. See id. 49. BRUGGEMAN & KEYES, supra note 44, at 13. 50. Id. 51. FLA. STAT. ANN. § 772.104 (Westlaw 2015). 52. Id. 53. WASH. STATE OFFICE OF THE ATT’Y GEN., supra note 4; DOMESTIC SEX TRAFFICKING: THE CRIMINAL OPERATIONS OF THE AMERICAN PIMP 4, POLARIS PROJECT, https://www.dcjs.virginia.gov/victims/humantrafficking/vs/documents/

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the burden of proof under the statute for recovering such damages is difficult because the victim must prove how much she earned when she was trafficked, typically without knowing this amount.54 The large volume of men serviced, coupled with a trafficker striking down any attempt by a victim to keep an accounting of her work, make it nearly impossible for a victim to meet the burden of proof to recover damages. Moreover, a victim’s own criminal background resulting from forced prostitution or drug use makes it difficult for the victim to access social services or to obtain legal relief.55 For the state to adequately enforce anti-trafficking laws, a person needs to be identified as a victim. Often, trafficked individuals do not recognize that they are victims of a crime until they are rescued from their trafficker. Denial of such abuse is common in women who are being trafficked by a “Romeo” pimp56 who leads the victim to believe that she has an actual romantic relationship with her abuser.57 Therefore, it is imperative for law enforcement and others who initially come into contact with these women to identify them as victims. Identification as a victim allows the state to pursue criminal charges against the victim’s trafficker and enables a rescued person to access critical services.58 Failure to identify a person as a victim or a misclassification of a victim as a criminal can result in a victim losing access to vital recovery resources like safe shelter, psychological help, and legal relief. Lastly, even if the victim has a well-developed case, humantrafficking cases can be expensive and time consuming and will often Domestic_Sex_Trafficking_Guide.pdf (last visited July 15, 2015) (discussing the monetary quota that pimps impose on their victims). 54. § 772.104(1)-(2). 55. SUZANNAH PHILLIPS ET AL., CLEARING THE SLATE: SEEKING EFFECTIVE REMEDIES FOR CRIMINALIZED TRAFFICKING VICTIMS 21 (2012), available at http://www.law.cuny.edu/academics/clinics/iwhr/publications/Clearing-theSlate.pdf. 56. See Phil Shuman, Romeo Pimps: What Can Be Done?, KTTV FOX 11 (Feb. 12, 2014), http://www.myfoxla.com/story/24710366/romeo-pimps-what-can-bedone. 57. BALES & SOODALTER, supra note 1, at 104–05. 58. Fact Sheet: Certification for Adult Victims of Trafficking, OFFICE OF REFUGEE RESETTLEMENT, U.S. DEP’T OF HEALTH & HUMAN SERVS. (Aug. 8, 2012), http://www.acf.hhs.gov/programs/orr/resource/fact-sheet-certification-foradult-victims-of-trafficking.

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require a lawyer who is willing to take on the case pro bono.59 And “[t]he existence of a criminal case may require that [the] civil action be stayed, once filed.”60 A guilty verdict in a criminal case is admissible in the civil case; therefore, lawyers will usually stay the civil case until the criminal trial has been completed, delaying needed financial relief.61 Other options available for victims of human trafficking are crime-victim relief programs, including civil forfeiture of assets, restitution as part of sentencing, and victim-assistance services.62 Each of these programs allows the victim to receive compensation, either directly or indirectly, from the criminal case against her trafficker.63 In many states, including Florida, programs like the Victim’s Assistance Fund extend the time limitations on filing claims to account for the obstacles faced by victims of trafficking.64 But once again, identification of a person as a victim plays a critical role. A victim can only take advantage of the extended time limitations if she is able to prove that she is a human-trafficking victim; therefore, a misclassification as a criminal or a failure to identify a person as a victim can result in their ineligibility for these crime-victim services.65 II.

ANALYSIS

Although there are many criminal and civil remedies available to domestic victims of human trafficking, they are difficult to access.66 59. See generally BRUGGEMAN & KEYES, supra note 44 (discussing the complexity of human trafficking cases and strategies for representing human trafficking victims). 60. Id. at 29. 61. Id. 62. Id. at 28. 63. Id. 64. See FLA. STAT. ANN. § 960.07(2) (Westlaw 2015); see also Bureau of Victim Compensation Claim Form, FLA. OFFICE OF THE ATT’Y GEN. (Oct. 2014), available at http://myfloridalegal.com/webfiles.nsf/WF/RMAS-9P7GFD/$file/ VictimCompClaimFormEng.pdf. (explaining that the one-year limit on filing a claim may be extended under certain circumstances for victims of human trafficking). 65. See FLA. STAT. ANN. § 960.065(2)(b) (Westlaw 2015) (denying compensation to victims who were engaged in unlawful activity, but providing an exception for victims who engaged in prostitution as a result of human trafficking). 66. See BALES & SOODALTER, supra note 1, at 96.

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Most of the remedies focus exclusively on victim recovery and compensation. But no state has yet specifically addressed how to handle the care and support of children born to trafficked women.67 Even though creating resources to assist victims with children is not a traditional tool used to combat human trafficking, it is potentially one of the most powerful. For example, one Tampa Bay survivor named Jennifer began dancing at a local strip club in order to pay for her infant’s medical bills.68 After being brutally beaten and raped for several hours, Jennifer was able to leave her trafficker’s office, but not before he told her what time to return the next day.69 Jennifer could have gone to the police to ask for help since she was not held in captivity; however, her trafficker used her infant’s needs as leverage to control her.70 After being severely beaten while her child slept in the same room, she finally decided to report her abuse to the police.71 Jennifer was lucky and was able to escape from her abuser, but she explained that she still does not know how to “live normally” and even worked for another pimp after her escape.72 Her escape and subsequent reentry into the trafficking life embodies what happens when a victim is unable to obtain compensation, has limited work skills, and is trying to care for a child with no reasonable means of support available. Kinsey Neeson, Director of Outreach and Strategic Partnerships at Saleh Freedom, a non-profit organization that advocates for human trafficking victims, stated that victims with children are a more common occurrence than people assume.73 She described one young woman who truly believed her trafficker was the father of her child until the baby was born, and she saw the child’s dark complexion.74 67. POLARIS PROJECT, supra note 3. 68. See Elaine Silvestrini, Survivor Recalls Road from Strip Club to Sex Slavery, TAMPA TRIB., Jan. 18, 2014, http://tbo.com/news/crime/survivor-recallsrape-sex-slavery-20140118. Jennifer’s name was changed to protect her identity. Id. 69. Id. 70. Id. 71. Id. 72. Id. 73. Kinsey Neeson, Director of Outreach and Strategic Partnerships at Saleh Freedom, Address at the W. Mich. Univ. Law Sch. Panel Discussion: FIGHT: Human Trafficking (Nov. 5, 2014). 74. Id.

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This woman will probably never be able to determine who fathered her child since her pregnancy was most likely the result of a sexual encounter with one of the numerous men she serviced. Unable to establish paternity for her child, this victim is barred from receiving child support under the current system.75 Situations like these identify why it is imperative to include childsupport remedies when discussing how to expand the services available to human-trafficking victims. Although there is no perfect solution to any of the issues that arise from human trafficking, this is one way to alleviate the burden placed on victims to find viable financial assistance. A.

Development of a Child Support Program for Victims

For child-support assistance, amending the current forfeiture laws to include forfeiture of trafficking proceeds—rather than just property—would allow the state to generate revenue to fund a victimonly child-support program, while simultaneously deterring traffickers by dismantling their operations financially. While it is unclear why the Florida Legislature has not amended forfeiture laws to include proceeds, this action would provide Florida with a way to raise significant revenue to fund a child-support program without affecting the budget of existing welfare and victim’s assistance programs. Forfeiture-of-assets laws allow law-enforcement agencies to seize any “real or personal property that was used, attempted to be used, or intended to be used” in the perpetration of a crime.76 After the assets are seized, they are either sold or disbursed to law-enforcement agencies, usually to the agencies that assisted in finding and prosecuting the trafficker.77 It is estimated that law-enforcement agencies receive about 80% of all seized assets.78 From 2000 to 2003 alone, Florida law-enforcement agencies took in more than $100

75. See Establishing Legal Paternity, FLA. DEP’T OF REVENUE, http://dor.myflorida.com/dor/childsupport/paternity.html (last visited July 8, 2015) (describing how to establish paternity in order to gain child support services). 76. FLA. STAT. ANN. § 787.06(7) (Westlaw 2015). 77. FLA. STAT. ANN. § 932.7055(4) (Westlaw 2015). 78. Robyn E. Blumner, Police Are Addicted to Lure of Easy Money, ST. PETERSBURG TIMES, Aug. 17, 2003, http://www.sptimes.com/2003/08/17/ Columns/Police_are_addicted_t.shtml.

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million in forfeited assets.79 Although law-enforcement agencies deserve some of the proceeds from seized assets because they expend significant resources to stop traffickers, there have been numerous reports of misuse of these funds.80 For example, “[i]n 2003 . . . it was reported that Tampa Bay police brass were keeping seized cars for their own [personal] use.”81 Some of the cars were valued at $38,000 or more.82 This blatant misuse of funds is discouraging, especially with reports of the limited resources available for human-trafficking victims. To prevent the misuse of money by law-enforcement agencies, a certain percentage of forfeited assets should be transferred to the State to provide financial support for the children of humantrafficking victims. But since most agencies would likely not be receptive to a budget cut, Florida’s legislature should increase the amount of assets taken from traffickers and reform its current forfeiture legislation to include proceeds derived from trafficking. Using the language suggested by Polaris Project,83 section 787.06 should be amended to read, “Any person who violates Florida’s human trafficking law under section 787.06 shall forfeit to the State any profits or proceeds and any interest or real property that the sentencing court determines to have been acquired or maintained as a result of committing such offenses.”84 Reforming Florida’s human-trafficking statute to include the forfeiture of proceeds would allow the state to generate substantial 79. MARIAN R. WILLIAMS ET AL., INST. FOR JUSTICE, POLICING FOR PROFIT: THE ABUSE OF CIVIL ASSET FORFEITURE 53 (2010). 80. See Blumner, supra note 78. 81. WILLIAMS ET AL., supra note 79. 82. Id. 83. See generally What We Do, POLARIS PROJECT, http://www.polarisproject.org/what-we-do (last visited July 25, 2015). Polaris Project is the leading non-profit, non-governmental organization that works to combat and prevent modern-day slavery and human trafficking. In addition to partnering with post-rescue resource programs, Polaris also advocates for legislative reform to offer victims greater protection. It is also compiles information from all 50 states and drafts annual reports on each state’s legislation. After compiling all this information, Polaris makes annual suggestions to improve human trafficking legislation nationwide. See id. 84. See Human Trafficking Legislative Issue Brief: Asset Forfeiture, POLARIS PROJECT (2012), http://www.polarisproject.org/storage/documents/issue_brief_ asset_forfeiture_september_2012.pdf (providing model language for states to incorporate in their asset-forfeiture statutes).

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revenue to fund a child-support program without deducting the amount given to law enforcement. For instance, the Polaris Project estimates that sex traffickers in the United States can accrue more than $500,000 a year in profits through the exploitation of just three victims.85 As recently as September 2014, Orlando law enforcement raided a human-trafficking operation pimping 25 women.86 Although the case is still under investigation, based on Polaris’s estimations, this operation generated approximately $5 million in just one year. Amending the current forfeiture laws to include forfeiture of proceeds would result in funding for more comprehensive state plans to combat human trafficking, such as the funding of a child-support program. Administration of a child-support program could be most effectively accomplished by structuring the fund like the federal remission program.87 The federal remission program allows victims to submit an application to recover pecuniary loss from the forfeitedassets fund.88 After being notified by the Attorney General, the victim fills out a petition, and a program official unilaterally decides whether to award recovery under the Attorney General’s supervision without any litigation by any parties.89 A comparable state program can be modeled after the federal remission program, allowing women to recover some form of financial support for their children and providing multiple benefits to the state and the victim. The State could identify and contact victims more easily if, after rescue, each victim was required to obtain a letter from the Florida Department of Health certifying them as a victim of human trafficking. Under the federal program, once a person has been recognized as an international victim of human trafficking and agrees to assist in the continued investigation and prosecution of their

85. Id. 86. David Bodden, 75-Year-Old Man Among Suspects Charged in Orlando Human Trafficking Ring, NEWS 13 (Sept. 18, 2014), http://www.mynews13.com/ content/news/cfnews13/news/article.html/content/news/articles/cfn/2014/9/18/ orlando_human_traffi.html. 87. See generally Returning Forfeited Assets to Victims: An Overview of Remission and Restoration, U.S. DEP’T OF JUSTICE, http://www.justice.gov/ criminal/afmls/pubs/pdf/victms-faqs.pdf (last visited Aug. 30, 2015) (describing the federal program). 88. Id. at 2. 89. Id.

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trafficker, they are able to apply for certification,90 and upon approval, the Department of Health and Human Services issues the victim a certification letter that gives them access to benefits.91 By extending this service to include domestic-victim certification, Florida women would also be able to assert their status as victims. Moreover, the application should be revised to reflect whether the victim had a child during her captivity. In an effort to prosecute traffickers and Johns, women who believe they know the identity of the father should be required to disclose that information to the Florida Department of Health so that subsequent investigations may be conducted. By allowing domestic victims to obtain a certification similar to international victims, these women will have easier access to other resources, and the State can maintain a registry of victims. Like the federal remission program, the State Attorney General’s office would be responsible for notifying victims of their eligibility to petition for this child-support program. Delegating the notification process to the Attorney General’s Office would not generate an excessive workload because the Attorney General’s Office has a department that is already responsible for advocating and administering victim’s compensation programs.92 Since all humantrafficking victims are victims of crimes under Florida statutes, the Attorney General’s office is already responsible for assisting these women—whether they apply for traditional victim’s compensation or the suggested child-support program. Moreover, the Attorney General’s Office would simply request a copy of the registry to know which women to notify. Once a victim has been notified and her petition has been approved, the Florida Department of Revenue, the agency that typically enforces child-support obligations, should administer disbursement of the funds.93 Ideally, the victim would receive support until she is selfsufficient; however, in some situations, a victim may never truly 90. Id. 91. Fact Sheet: Certification for Adult Victims of Trafficking, U.S. DEP’T OF HEALTH AND HUMAN SERVS.: OFFICE OF REFUGEE RESETTLEMENT (Aug. 8, 2012), http://www.acf.hhs.gov/programs/orr/resource/fact-sheet-certification-for-adultvictims-of-trafficking. 92. See Crime Victims’ Services, FLA. ATT’Y GEN., http://myfloridalegal.com/ pages.nsf/Main/90514096788f88c085256cc50075acf7 (last visited Oct. 29, 2014). 93. See Child Support Enforcement, FLA. DEP’T OF REVENUE, http://dor.myflorida.com/dor/childsupport/ (last visited Oct. 29, 2014).

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recover from her experiences.94 Therefore, the state must determine how long a victim will be eligible to receive support. To address this issue, guidance from social-service programs like Temporary Assistance for Needy Families (“TANF”) and state unemployment funds would be useful. Like the proposed child-support fund, TANF and state unemployment funds are meant to be temporary; they are offered as a crutch to people in need. Under these programs, a person is eligible for a specific period of time, usually six months, at which point the assistance is either terminated, or the agency reviews a person’s petition for extension of assistance. The proposed child-support program should be administered similarly to temporary social-service programs like TANF and unemployment insurance. The initial grant of a petition would allow the victim to receive support for a limited time period, with an option to apply for an extension of assistance upon showing that the victim is still in the recovery process. Because the recovery rates and experiences for each trafficked woman vary, the decision to grant an extension should be made on a case-by-case basis. For example, child support could be offered to a woman until her child turns 16—the age at which a minor is eligible to work—or the woman could recover child support until the child is 18 upon submitting a petition showing undue hardship. B.

Addressing Legislative Qualms: Who, What, How, When?

With the development and implementation of any new assistance program, legislators will be understandably hesitant. But the benefits of providing victims with a viable alternative to support their children substantially outweigh any objections or fears the state may have. Nevertheless, in anticipation of a few obvious concerns legislators may have, the following section addresses why many of these reservations are misplaced. One possible objection to developing such a fund is that there would be no way to calculate the child-support amount. Traditionally, child support is calculated based on the net income of the parent who does not live with the child or has minority timesharing with the child.95 Without establishing paternity, there is no viable way to impute income to an unknown father. But there is a 94. See Neeson, supra note 73. 95. See FLA. STAT. ANN. § 61.13 (Westlaw 2015).

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sustainable alternative that can be used to determine child support: the amount of recovery could be calculated by determining what the required child support would be for a person earning minimum wage. Based on this alternative, the victim’s mother could recover around $373 per month for one child based on the average income of a minimum-wage employee in Florida.96 The amount of support for any additional children could be calculated using the traditional child-support guidelines in Florida.97 Since child support is usually based on the income of the noncustodial parent, it may seem that a victim is recovering significantly less than if she sought to enforce child support traditionally with a court order. But under traditional child-support laws, a woman would have to establish paternity as a prerequisite to recovery. And with a sex-trafficking victim averaging 10 to 15 Johns a night for seven years,98 the likelihood of establishing paternity for a child born to a victim is highly improbable. Therefore, the most realistic and effective way for children of victims to receive some support is to ensure that their mothers are able to recover at least the minimum amount of support allowed under traditional child-support laws in Florida. Another concern the State may have is whether trafficking proceeds will be sufficient to support all of the children of victims until the children reach the age of 16. Quantifying the exact number of children is challenging due to difficulty in victim identification.99 The fund could, however, be limited to women who had children as a result of being trafficked and who were either rescued in Florida or who permanently reside in Florida. This limitation would ensure that the revenue generated by the State is serving the State’s citizens.100 By limiting the program to victims rescued in Florida or victims that are citizens of Florida, the number of women eligible for the program

96. FLA. STAT. ANN. § 61.30 (Westlaw 2015). 97. How to Change a Support Order, FLA. DEP’T OF REVENUE, http://dor.myflorida.com/dor/childsupport/modification.html (last visited Oct. 29, 2014). 98. WASH. STATE OFFICE OF THE ATT’Y GEN., supra note 4. 99. Neeson, supra note 73. 100. Although the proposed program is directed at Florida, every state should adopt a comparable child-support assistance program to ensure all victims with children are receiving some type of aid.

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would be reduced without rendering the program useless because of complicated restrictions. Another potential concern is that a woman could abuse the program by collecting from the recovery fund while already receiving child support, financial assistance, or other government support. But the federal remission program takes the possibility of double recovery into consideration and creates a limitation on a victimâ&#x20AC;&#x2122;s eligibility by disqualifying any victim who has reasonable access to other compensation.101 The proposed Florida child-support fund could adopt a similar restriction. CONCLUSION There are unknowns in the size and financial impact of the program proposed by this Comment, but something must be done to respond to the needs of human-trafficking victims and their children. It is known this problem exists.102 It is known that women who have a child as a direct result of trafficking are typically barred from traditional child-support assistance.103 It is known that traffickers prey on vulnerability, and there is arguably no person more vulnerable than a woman unable to financially support her child.104 Women possess a primal instinct to protect their children at all costs. This instinct is simultaneously their greatest strength and their greatest vulnerability. Until a womanâ&#x20AC;&#x2122;s need to care for her children is addressed, children will continue to be used as bait to lure vulnerable women back into human trafficking. Reforming forfeiture laws is not the only viable solution to this problem; civil-remedy reform and social-services reform also provide possible solutions, but are beyond the scope of this Comment. Human trafficking cannot be viewed through tunnel vision aimed only at prosecuting the perpetrator of the crime. State and federal lawmakers need to take a holistic approach to solving this problem and must consider factors that make a victim vulnerable to trafficking. Until legislators effectively address child support and other more specific issues, human trafficking and sexual exploitation of women will never be fully eradicated. 101. 102. 103. 104.

See U.S. DEPâ&#x20AC;&#x2122;T OF JUSTICE, supra note 87, at 2. Id. Id. POLARIS PROJECT, supra note 46.

WESTERN MICHIGAN UNIVERSITY THOMAS M. COOLEY LAW REVIEW SPECIAL PATRONS Mike Korn

David C. Whipple LAW FIRM BENEFACTORS Bailey, Smith & Bailey, P.C. The Honorable Avern Cohn Krause, Moorehead & Draisen, P.A.

2015 DISTINGUISHED BRIEF REVIEW PANEL Professor Erika Breitfeld Professor Mark Cooney Professor Carly Self

Professor Bradley Charles Professor David Finnegan Professor David Tarrien