MEMPHIS LAW MAGAZINE | SPRING 2017 A publication of the University of Memphis Cecil C. Humphreys School of Law
How Equity Crowdfunding is Changing the Investment Game
Children’s Defense Clinic + Gault’s Legacy E75870 ARMD Spring 2017 UofM Law Mag.indd 1
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Spring 2017 | Issue 7
Dean Peter V. Letsou
Executive Editor Ryan Jones
Contributing Writers Lisa Geis Lee Harris Ryan Jones Marsha Levick Mae C. Quinn Mary Ann Scali
Photography Rhonda Cosentino Ryan Jones The Memphis Daily News/Andrew J. Breig
Art Direction and Design Archer Malmo
Published By The University of Memphis Cecil C. Humphreys School of Law 1 North Front Street Memphis, TN 38103 (901) 678-2421 memphis.edu/law To submit story ideas, alumni updates, or for other ML related inquiries, please contact Executive Editor, Ryan Jones at firstname.lastname@example.org. For limited advertising opportunities, please contact Executive Editor, Ryan Jones at email@example.com. The University of Memphis does not discriminate against students, employees, or applicants for admission or employment on the basis of race, color, religion, creed, national origin, sex, sexual orientation, gender identity/expression, disability, age, status as a protected veteran, genetic information, or any other legally protected class with respect to all employment, programs and activities sponsored by the University of Memphis. The following person has been designated to handle inquiries regarding non-discrimination policies: Michael Washington, Director for Institutional Equity, mswshng1@memphis. edu, 156 Administration Building, 901.678.2799. The University of Memphis policy on nondiscrimination can be found at http://policies. memphis.edu/UM1381.htm. UOM591-FY1617/6M Hot Graphics
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A Diverse and Inclusive Law School for a Diverse and Inclusive Community
How Equity Crowdfunding is Changing the Investment Game
Rep. Steve Cohen (JD ’73) D-Memphis and Rep. David Kustoff (JD ’92) R-Memphis
A New Wave of Funding
By Ryan Jones
News + Events
Children’s Defense Clinic Growing to Defend By Ryan Jones
Student Profile: Sydney Trujillo A look at the current SBA president’s focus on health and wellness initiatives and her mission to alleviate stress and increase inclusiveness and well-being at Memphis Law.
A new form of crowdfunding is slowly creeping into the mainstream worlds of investors and business entrepreneurs alike. Equity crowdfunding opens the door for the hundreds of millions of Americans that want to invest in businesses on the front end but didn’t previously have the capital or relationships required to do so. It’s a new wave of funding for the business and entrepreneurial worlds.
Gault’s Legacy How The Landmark Decision is Still Shaping the Future of Juvenile Justice By Lisa Geis, Marsha Levick, Mae C. Quinn and Mary Ann Scali As we mark the golden anniversary of the Gault decision, the juvenile justice landscape is ripe for change. Juvenile justice stakeholders across the country consider what will be the next Gault, Roper, or Miller. Frontline defenders know and embrace juvenile defense as a specialized field — all the while trying to incorporate Supreme Court jurisprudence in their local courtrooms. Juvenile justice advocates are reaching beyond the juvenile courtroom by questioning the civil rights of children and the policing of our cities.
True Blue InterVIEW
Faculty Op-Ed: Creating Public Awareness for Memphis’ Aquifer By Professor Lee Harris Professor Harris goes into detail about his efforts as a state senator to ensure that the Memphis aquifer is safe and plentiful for future generations and why this is important enough to be a bipartisan issue.
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A Diverse and Inclusive Law School for a Diverse and Inclusive Community Dear Friends, Memphis is among our nation’s most diverse communities. We consider the diversity of our community one of its greatest strengths and we strive at Memphis Law to create a law school that is as diverse and inclusive as the city we call home. During the current academic year, we’ve been privileged to celebrate significant milestones, enhance the support our community provides to all its members, and take important steps toward ensuring that we become an even more diverse and inclusive community in the years to come. First, a milestone: Our Tennessee Institute for Pre-Law (TIP) program turns 30 this year. Under the exceptional leadership of Memphis Law diversity coordinator Jacqueline O’Bryant, TIP is Tennessee’s only law school “admission by performance” diversity program. Participants are Tennessee or border county residents who show strong potential for the study of law and, at the same time, bring much-valued and wide-ranging diversity to our school. We’re extraordinarily proud of the success our TIP students have enjoyed both at the law school and in the profession. TIP students have excelled in their coursework, passed the Tennessee Bar Examination at impressive rates and gone on to serve as leaders of the legal profession in Memphis and beyond. TIP students have also contributed greatly to making Memphis Law the most diverse law school in our region. But creating a diverse community is just the first step. We also need to ensure that all our students have the support they need to succeed and that all feel respected, appreciated and welcome. I’m especially pleased to report that our current Student Bar Association (SBA) president, Sydney Trujillo (profiled in this issue of ML Magazine) has played an invaluable role in enriching this most necessary support and enhancing the inclusiveness of our law school.
Under Sydney’s leadership, this year’s SBA has emphasized health and wellness for all our students. The SBA has created and championed “Wellness Wednesdays,” which have featured guest speakers and informational sessions on topics ranging from mindfulness to stress management to healthy eating. The SBA has also played the central role in bringing a counselor from the University’s Counseling Office to our downtown campus, an effort that drew key support from Law Alumni Board President Richard Glassman and University President M. David Rudd. Finally, I’m extremely optimistic about the future of diversity and inclusion at Memphis Law. You’ll read more about it in the next issue of ML Magazine, but during the Spring semester (just before our press deadline), the law school’s Black Law Students Association (BLSA) organized its first annual Unity in Diversity Scholarship Banquet. Envisioned by BLSA President Dawn Campbell with outstanding support from Professor Demetria Frank, the event was designed to celebrate the diversity that makes us stronger while providing funding for enhanced diversity initiatives at the law school. The Unity in Diversity Scholarship Banquet was an unqualified success, selling out the ballroom at the Guesthouse at Graceland, raising more than $100,000, with a significant portion going toward diversity initiatives, and honoring champions of diversity from our community, including our own distinguished alumna, the Honorable Bernice Donald of the United States Court of Appeals for the Sixth Circuit. With such dedicated students, faculty, staff and alumni, our future as a diverse and inclusive law school is bright indeed. Cordially,
Peter V. Letsou Dean 4
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NEWS + EVENTS UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AT MEMPHIS LAW The U.S. Court of Appeals for the Sixth Circuit visited Memphis Law and held oral arguments in the historic courtroom this past fall. The panel, consisting of Senior Judge Gilbert S. Merritt, Senior Judge Eugene
IMPLICIT BIAS CONFERENCE
Lindsey Gill (JD ’13) joined the
The University of Memphis School of Law hosted a
law school as the new assistant
conference on implicit bias in the fall. The event, “A
director of law school student
New Look at an Old Problem,” explored what implicit
affairs and Academic Success
bias is, how it operates, how to recognize it and how
to manage its influence. Speakers included U.S. Sixth Circuit Court of Appeals Judge Bernice B. Donald,
E. Siler Jr. and Memphis Law alumna Judge Bernice B. Donald, heard arguments in the death penalty case of
Josie Holland (JD/MBA ’14)
District Court Judge Jon P. McCalla, Shelby County
Andrew Thomas Jr. v. Bruce Westbrooks. Following oral
joined the law school as the
Juvenile Court Judge Dan H. Michael, immediate
arguments, attorneys in the case conducted a post-
new public interest counselor
past American Bar Association President Paulette
argument debriefing and the judges attended a reception
in the Career Services Office.
Brown and a host of law professors from across the country. The conference was coordinated on behalf
in the Gordon Ball Scenic Reading Room. Brigid Welsh (JD ’13) joined the law school as the Institute for Health Law & Policy Fellow, a position funded by a grant from The Urban Childhood Institute.
BLSA UNITY IN DIVERSITY SCHOLARSHIP BANQUET The Black Law Students Association (BLSA) at Memphis Law hosted the Unity in Diversity Scholarship Banquet in February at The Guest House at Graceland, with keynote speaker, Robert Grey, the former American Bar Association (ABA) president and current president of the Leadership Council on Legal Diversity. The inaugural event raised more than $100,000, with a significant portion
Memphis Law, in collaboration and partnership with
The University of Memphis Law Review is pleased to
The Kresge Foundation, will launch the new Strategic
announce the Volume 48 Editorial Board:
Code Enforcement Academy this summer. The new
Editor-in-chief: George Scoville Managing editor: Connor Dugosh Senior articles editor: Maggie McGowen Senior notes editor: Katie Abernathy Business editor: Brandon Woosley
of cleaning up vacant and blighted properties.
ADVANCED MOOT COURT PROBLEM WINS NATIONAL AWARD Last year’s Memphis Law Advanced Moot Court problem won the inaugural Judith S. Kaye Writing
Symposium editor: Rachel Barenie
written moot court problem in the country. The
Distinguished Public Service Award for outstanding
program will examine ways to streamline the process
Competition, a competition hosted by New York
of BLSA and its president, 3L Dawn Campbell.
honored the Memphis Law BLSA chapter with its 2016
Neighborhood Preservation, Inc., and support from
Research editor: Mallory Farrar
The Zion Community Project Board of Directors
MEMPHIS LAW LAUNCHES STRATEGIC CODE ENFORCEMENT ACADEMY
2017-18 LAW REVIEW
going toward diversity initiatives, thanks to the hard work
BLSA PUBLIC SERVICE AWARD
of the law school by Professor Demetria Frank.
University School of Law to select the best studentproblem itself was written by William Cranford.
TIP 30TH ANNIVERSARY
This year marks the 30th anniversary of our
Tennessee Institute for Pre-Law (TIP). Currently
led by our coordinator for law school diversity,
Jacqueline O’Bryant, TIP, Tennessee’s only law school
“admission by performance” diversity program,
Ben Law Kara Bidstrup Adrian Vivar-Alcalde Nick Roberts
continues to be a leader in the University’s and the region’s diversity-related efforts and has enabled scores of some of our best law students to attend Memphis Law over the years.
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LAW REVIEW 2017 SYMPOSIUM
Dean Emeritus John DiPippa (UALR William H. Bowen
The 2017 Law Review Symposium — The Fragile Fortress:
Wisconsin—Eau Claire); Professor Justin Walker (University
Judicial Independence in the 21st Century — was held in
of Louisville Brandeis School of Law); and Professor
Patrick Walsh (Federal Law Enforcement Training Center).
This year’s symposium brought together voices, insight, bar in a dialogue meant to bring renewed attention and
UNCERTAIN CARE: THE FUTURE OF THE ACA
innovative thinking to this vital issue. Participants included
The University of Memphis Institute for Health Law &
Judge Bernice B. Donald (United States Court of Appeals
Uncertain Policy held its fourth annual symposium —
for the Sixth Circuit; Judge Timothy J. Corrigan (United
Care: The Future of the Affordable Care Act — in March.
States District Court for the Middle District of Florida);
In an effort to shed light on what the changes to the
Senior Judge Sterling Johnson, Jr. (United States District
ACA will look like under the new administration, the
Court for the Eastern District of New York); Mr. Michael B.
symposium gave an overview of the accomplishments
Mukasey (Former Chief Judge, Southern District of New
and challenges of the ACA, an update on its status, and a
York; Former United States Attorney); General R. David
brief summary of “replace and repeal” options. Numerous
Proctor (United States District Court for the Northern
local and national experts participated and gave key
District of Alabama); Chief Justice Zarela Villanueva
perspectives on critical elements surrounding the future
Monge (Supreme Court of Costa Rica); Professor and
of the ACA.
experience, and ideas from the bench, academy, and
RETURN OF THE TIGER! Thanks to the generous support of Judge Diane Vescovo and Mike McClaren, the law school’s Tigers Around Town statue was returned to its home in front of the law school in the fall. An unveiling took place in November to showcase the new artwork and was followed by a reception in the lobby of the law school with students, faculty, staff and law school alumni board members.
School of Law); Professor Eric Kasper (University of
PROFESSOR SCHAFFZIN ON BOARD OF TRUSTEES Memphis Law professor Katharine Traylor Schaffzin has been selected by the University of Memphis Faculty Senate to serve as the faculty representative on the inaugural Board of Trustees for the University of Memphis. Professor Schaffzin will serve as a Trustee for a two-year term.
JACQUELINE O’BRYANT RECEIVES NBA PRESIDENT’S AWARD Jacqueline O’Bryant, law school diversity coordinator at the University of Memphis School of Law, has been named as the honored recipient of the National Bar Association, Ben F. Jones chapter, President’s Award. This award was presented at the Ben F. Jones Chapter 2016 Barrister’s Ball, which also marked the 50th anniversary of the Ben F. Jones chapter.
COLD CASE: JUSTICE FOR ELBERT WILLIAMS Jim Emison, a renowned and award winning courtroom lawyer of 43 years, presented, “Cold Case: Justice for Elbert Williams,” at the law school in the spring. The program dealt with the unsolved murder of Elbert Williams in the rural town of Brownsville, in Haywood County, Tennessee, where Mr. Williams, charter member of the Brownsville NAACP Branch, became the first NAACP official in the nation murdered for his civil rights work. Since his retirement at the end of 2011, Mr. Emison has been investigating the cold case murder.
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Jones By Ryan
In its first year, Memphis Law’s newly formed Children’s Defense Clinic has already made a difference in the courtroom and in the lives of the city’s youth. Under the direction of Professor Lisa Geis, the law school’s newest clinic has played a critical role in institutionalizing reform in Shelby County’s juvenile court system. The clinic provides client-
centered, legal representation for youth who have been arrested and charged in Shelby County Juvenile Court, while giving students the opportunity to engage in all aspects of pre-trial and trial advocacy, including case strategy, investigation, motions practice and oral argument. “Through lecture and practice, students learned very quickly that children in the delinquency courtroom have the same if not more at stake than adults charged in criminal court,” said Professor Geis. “From the first day of orientation, the clinic experience reinforces the best-practice standard of juvenile defense as a specialized field.”
The new clinic is the result of a partnership with the Shelby County Public Defender’s Office and Shelby County government. Coming on the back of the Department of Justice investigation into Shelby County Juvenile Court, where it was found that there was an overrepresentation of black youth in the system, with children not getting due process in court, it was determined that the public defender’s office needed some support and training and a juvenile-specific unit. The Children’s Defense Clinic has taken up the charge and is training practice-ready lawyers that are specialized in juvenile defense.
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Photo courtesy of Memphis Daily News/Andrew J. Breig
“Going forward, the Children’s Defense Clinic will become an increasingly important voice as leaders across the community work to build a juvenile justice system that is developmentally appropriate and responsive to the needs of our youth,” according to Shelby County Public Defender Stephen Bush (JD ’89). “It is a cornerstone partner in our efforts to promote best practices in zealous, client-directed advocacy, and driving positive system reform.”
Lessons Learned, Experience Gained The students in the inaugural semester of the Children’s Defense Clinic all gained the type of experience that the partner organizations hoped for when planning the clinic. We’ve asked a few of these students what their expectations were and what they’ve learned as a result of their work.
Nesanet Temesghen Going into the clinic, I wanted to learn as much as I could about the constitutional rights guaranteed to children so that I could be a zealous advocate for them in the courtroom. One of the best aspects of my experience was the passion I developed for juvenile system reform efforts. These efforts seek to ensure that juvenile courts throughout the country have measures in place to safeguard the due process and equal protection rights of our children. I was surprised by how many of the same children cycled through the juvenile system over and over again. This speaks to larger issues like the child’s background, socioeconomic status and lack of opportunities, which all act as obstacles in their path to rehabilitation.
The challenges involving this situation deal with ensuring that the juvenile system consistently prioritizes rehabilitation and that advocates continue to spread awareness that children truly are different from adults and require more protection. We have to dig deeper and look into the child’s educational, mental health, and family/ social background in order to provide effective rehabilitation opportunities
Throughout it all, I was amazed that we have the ability, as student attorneys, to advocate for the children. Although we are under supervision, we are given the cases and it is up to us to do the work involved with advocating for the outcome that our client wants. There is a world of difference between dealing with a mere file and dealing with a person that is depending on you and that you are the one that can help them.
Having spent time as an intern at the Public Defender’s Office, I expected that this would be more of the same things that I encountered during my time there. I did not realize that we would have the level of contact with the clients that we had, nor did I realize that the court would view us as attorneys rather than students.
The best aspect of my experience was being in the courtroom and arguing for juveniles, many of whom are disadvantaged and facing so many challenges on so many different fronts. Not only did I gain valuable experience, but I was able to do so through advocating for these children.
I entered the clinic hoping to learn the “nuts and bolts” of juvenile court. I was not expecting to have the opportunities and to gain the level of knowledge and experience that I gained or to see the greater picture of the “juvenile issue” in the city. As cliché as it sounds, “It takes a village” and until the village decides to come together, things are not going to improve. The issues such as poverty, breakdown of the family unit, lack of investment in children’s lives on a community level, and lack of dedicated mentors are the issues that we have seen in almost every case we have encountered. The best personal experience for me was being able to, on some level, mentor and counsel the children that they can be whatever they want to be in life. One of the children I represented told me that she wanted to be an oncologist. I was able to look her in the eye and tell her that if she worked hard and stayed positive that she could do great and amazing things in life. When her face lit up over someone other than her mom telling her something positive, I knew that this was needed in the lives of more of these kids. One of the best moments was when she jokingly asked me if I would bring her some snacks to school. That was when I knew that she felt comfortable enough with me that I had made a positive impression on her life and that I could be that adult who could truly make a difference in her world even beyond juvenile court.
The most eye-opening aspect was getting to know some of the kids and their families, and coming face to face with living conditions and education levels below the normal or average. One of the biggest aspects that I took away from the experience was learning that children truly are not just miniature adults — they are different. Prior to the clinic, I didn’t know much about juvenile justice case law. I know now the importance of protecting children’s rights, especially the right to an attorney in juvenile court. It’s a very different environment than the law school or the environment in which I grew up. It wasn’t as easy as I expected to build a relationship with the kids in which they knew and understood that I was representing them — not their parents or the courts or anyone else.
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Class of 2017
Student Bar Association (SBA) President Sydney Trujillo made it a priority during her 3L year to institute a variety of programs and activities centered on health, wellness and stress reduction for law students. Her “Wellness Wednesday” initiative helped to instill a sense of self-awareness regarding physical, mental and emotional health within the Memphis Law student body this year. We’re proud to highlight Sydney, as well as the success stories she’s been a part of during her time as SBA president. ML: Why was it important to focus on the health and wellness of law students as a part of your SBA initiatives this year? Sydney Trujillo: Last spring, the American Bar Association (ABA) sent out a mental health survey and a lot of my peers felt that it was not effective, so I started doing some research and found the statistics of stress, depression and mental illness in law students to be concerning. Realizing the risk for law students and the stigma that often accompanies mental illness, I wanted to do something about it at our school. We hear from Tennessee Lawyers Assistance Program (TLAP) once a year, but the feedback from the students was that it always left them feeling like they were doomed to a path of depression, alcoholism, or substance abuse, instead of lifting them up and helping them feel like there was a healthy path. With Wellness Wednesday, I wanted to show the student body that while depression, anxiety, alcoholism and drug abuse are real and scary, we can deal with these issues in healthy ways. If some people are struggling, there is no shame in that, and they should know that they are not alone in it. ML: What were some of your related programs and giveaways that you’ve overseen this year as part of your wellness initiatives?
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Sydney: We have had guest speakers, informational sessions and giveaways throughout
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the year. Additionally, we have talked about mindfulness, stress management and healthy eating in a variety of programs, and have also given away stress balls, green tea, adult coloring books and offered yoga classes on Saturdays. We also acquired a refrigerator for students so they could store their lunch or dinner on long law school days. Additionally, I worked alongside Kelsey Walton, the SBA director of student affairs, as well as law school and main campus administration and Richard Glassman, the Law Alumni Chapter president, to ensure that our law students would have access to a professional counselor at our downtown campus location.
ones who did not go to the University of Memphis for their undergraduate degrees are less familiar with the main campus. The statistics of risk for stress makes it essential for students to have access to care and support that a counselor can offer on the facility where they are in class every day. Access to the counselor on our campus has allowed students to easily fit self-care into their busy schedules. I am thrilled that everyone came together and helped make sure that this became an option for our students.
ML: How do you think your programs and initiatives have impacted your fellow studentsâ€™ lives and what do you hope theyâ€™ve taken away from them?
Sydney: I have learned that to be able to lead others, I must first take care of myself. Advocating on behalf of the student body has been an honor, and one that I have taken very seriously. However, if I had not taken my own advice to focus on my physical, mental and emotional well-being, I would have not been able to succeed. Team work made my hypothetical ideas a reality. The entire SBA board, a total of 21 other students, has been my core support group: allowing for the goals I set to be achieved and excelling in their own leadership roles. The committee for the Wellness Wednesday program, led by 2L Hallie Flanagan, ensured that the little details of each event we held were managed.
Sydney: Law school is hard work and very stressful. Reading and learning to comprehend case law, the Socratic Method, living on a student budget and changes that we face in everyday life can become overwhelming if healthy habits are not maintained. I wanted SBA to facilitate an open conversation, and try to reduce the stigma that comes with mental illness. It was important to me as SBA president to use my position to fill the void that existed on this topic. The students struggle with these issues. Mental health gets pushed under the rug, or is often used as a punch line. Too often, the person sitting next to us in class is the person dealing with the reality of a mental illness. I hope that the student body has learned to ask for help when they may be struggling, and to not allow for stress to manifest into a larger problem.
ML: What have you learned about yourself because of your SBA leadership and work?
ML: Why was it so important for you to have a dedicated counselor return to the law school? Sydney: This was particularly important to me because while law students have the option to go to the main campus for counseling, it was difficult for a lot of students to do so. Numerous classmates expressed an interest in seeing a professional counselor at our downtown law campus instead. Law students experience an entirely different atmosphere with stressors unique to them alone. Many students live and work downtown, and the 10
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How Equity Crowdfunding is Changing the Investment Game By Ryan Jones
Mention crowdfunding and many people’s minds go directly to projects and companies like Kickstarter or ioby. It’s fun to help launch a unique invention or tech gadget or contribute to a neighborhood or community initiative like bike lanes, community gardens or public murals, so it’s understandable why those platforms have become so popular amongst project-based initiatives across the world. 11
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However, there’s another form of crowdfunding that is slowly creeping into the mainstream worlds of investors and business entrepreneurs alike. Equity crowdfunding opens the door for the hundreds of millions of Americans that want to invest in businesses on the front end but didn’t previously have the capital or relationships required to do so. It’s a new wave of funding for the business and entrepreneurial worlds.
JOBS Changes the Landscape Essentially, equity crowdfunding allows “average” people to buy shares in private companies. Originally authorized under the 2012 Jumpstart Our Business Startups (JOBS) Act, it gives small and midsize companies the chance to raise capital from ordinary people instead of the Wall Street elites. Until now, businesses in America that did not want to bear the high cost and delay of registration with the Securities and Exchange Commission (SEC) have been restricted to fundraising from the relatively small pool of 8.5 million potential investors (accredited investors) that make at least $200,000 per year individually or $300,000 a year jointly with a spouse, or have a net worth of at least $1 million. These were the only entities that federal securities laws allowed to invest in unregistered offerings. Now, startups can pitch their business plans to the masses, with the hope of not only providing their business with the needed cash, but also to create a dedicated base of customers who feel that they have a real stake in the business’ success.
So what changed with the rollout of the JOBS Act? The JOBS Act was intended to encourage the funding of small businesses by easing up on securities regulations. It was the single largest change to regulations having to do with the investment offerings by small companies since the creation of the SEC after the Great Depression. The JOBS Act has a number of implications for startup businesses, specifically in regards to crowdfunding. The JOBS Act created a much better environment for startup investing than what was there before it. As a result of its passage, it is not only easier for companies to raise money without completing the
SEC’s complex and expensive registration process, but it’s also easier for these same companies to stay private for longer, should they choose to do so. As it pertains to crowdfunding, the new exemptions in the JOBS Act allow a company to receive smaller public investments without the old requirement that they register the offering under the Securities Act of 1933. It provides greater room for crowdfunding without triggering ongoing reporting, auditing and other requirements under the Securities Exchange Act of 1934 that otherwise apply when companies become too large and acquire too many investors. Equity crowdfunding is one of the newly encouraged avenues of investment brought about by the JOBS Act. It’s not quite the same thing as making a donation on Kickstarter or GoFundMe though. With equity crowdfunding, anyone who invests under the terms and conditions of a crowdfunding site will receive a share of the company in return, instead of the purchase and pre-order of products a la Kickstarter. Equity crowdfunding is not a donation, but rather a purchase of a financial interest in the company. The new systems come with risk since crowdfunding investors will not get the full protections the federal securities laws ordinarily apply to public offerings and public companies. Indeed, the SEC has warned that some crowdfunded companies could turn out to be “moneylosing fraudulent systems.” But to help small businesses and startups, the door is now open for more ordinary Americans to enter the investment world in order to buy shares in high-risk, highreward privately held companies, thanks to the JOBS Act.
Changes, Titles and Installments The JOBS Act introduced three forms of equity crowdfunding:
Regulation A+, which updates the SEC’s long-standing Regulation A exemption from registration (a type of miniregistration process), primarily by increasing the limit on Regulation A offerings from $5 million in any 12-month period to $50 million; and Regulation Crowdfunding, which is designed for seed stage funding of startups and microenterprises and permits such companies to raise up to $1 million in any 12-month period with minimal disclosures, including from ordinary unaccredited investors, and without becoming subject to full reporting and other obligations under the Securities and Exchange Act of 1934. These three different forms of crowdfunding have all suffered from a lack of public understanding. Small business owners, investors, the media and the general layperson all frequently fail to understand the differences between them or when a particular form applies to a specific investment opportunity. The JOBS Act also has a trilogy of its own, with several installments, or titles, that have rolled out since its 2012 signing and have directly contributed to the rise of equity crowdfunding at various levels. The first was Title II of the JOBS Act, which rolled out as part of amendments to SEC Rule 506(c) in 2013. This first form of investment crowdfunding allowed firms to generally solicit investments from accredited investors, as noted above. This changed nearly 80 years of federal law that generally prevented firms who did not formally register their offerings with the SEC from seeking investments from individuals with whom they did not already have an existing business relationship.
Amended Rule 506, which now permits the syndications to wealthy accredited investors by means of previously-forbidden general solicitations and is the foundation for the success of AngelList, the world’s largest platform that allows investors to discover investment opportunities in early-state companies online; 12
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The second installment was Title IV. This took the SEC’s long-standing Regulation A and modified it to create what is now called a Regulation A+ offering. Regulation A+ officially went live in September of 2015, but has been very slow to gain any traction, with only 20 companies closing an offering through Regulation A+ in 2016. Regulation A+ provides for a mini-registration process (also called “IPO-lite”) and allows a “testing of the waters,” which means that nonbinding expressions of interest can be secured even before the Regulation A+ disclosure document is provided to potential investors and the SEC. Unlike Regulation A, which had a limit of $5 million in any 12-month period, Regulation A+ allows companies to obtain up to $50 million in a 12-month period. But Regulation A+ comes with some heavy disclosure requirements, including, in some cases, qualifying with state securities regulators. Finally, the latest installment was Title III, or Regulation Crowdfunding, which went live just last May. This allows any American startup or small business to raise up to $1 million in any 12-month period from ordinary investors, including friends, family and followers, but only if the offering is conducted through crowdfunding platforms
(such as Wefunder and Indiegogo) registered with the SEC. Entrepreneurs launch their campaigns on these platforms in order to invite people to review their business plans, market opportunity, financial statements and video pitches. Backers then get either equity or debt securities of the business, depending on terms of the offering. As of this writing, there were over 20 debt and equity crowdfunding platforms, with 186 companies having launched a campaign through them, and with 79 of those companies hitting their minimum funding target, according to a report from Crowdfund Capital Advisors. These investors committed $19 million to the 186 campaigns and $17.9 million to the 79 funded campaigns, per the same report. Experts see this $17.9 million as a great start for the rollout of this stage of the JOBS Act, since this money was raised in a substantially shorter amount of time than it would have taken via the venture capital route, and since it was raised by companies that would not have traditionally qualified for venture capital financing and from ordinary, rather than institutional or other accredited, investors.
When Does it Work? Imagine you own a small business that has experienced a lot of success in its first few years. Things are going well and your annual sales have surpassed all of your best expectations, so you start to think that it’s time to expand, but traditional banks won’t loan your business any money without a longer track record. Let’s say you can’t find any angel investors or venture capitalists, the rich folks that typically fund early stage startups and businesses, who are interested in the opportunity either. What do you do in order to expand? Through the new avenue of equity crowdfunding, established by SEC Regulation Crowdfunding, which, if you’ll remember, allows average people to buy shares in private companies, you could potentially
raise up to $1 million in any 12-month period for your expansion, all through the “crowd,” via fundraising platforms such as Wefunder, the largest of these platforms in the marketplace as of this writing. (You could raise even more through new Regulation A+ or amended Rule 506, but the former requires a detailed — and expensive — disclosure document, among other things, and the latter is largely limited to institutional and other accredited investors). As the owner of a successful small business with a passionate client base, you’re an ideal candidate for crowdfunding through a platform like Wefunder, according to the company’s CEO Nick Tommarello. He notes that one thing that unites all successful crowdfunding campaigns is a passionate group of backers. “We do companies that people care about,” Tommarello said. “If there’s a group of people out there that really cares about this company, it does well on Wefunder. The stronger the community, the more shared the feeling of ownership, the more likely that company can succeed in fulfilling its vision.” Another example, according to the Wefunder portfolio of clients listed on their website, is a company called Beta Bionics, a startup headed up by a professor at Boston University named Edward Damiano that produces an experimental medical device for Type 1 diabetes. Damiano and his partners are working on a device known as a “bionic pancreas,” to help treat diabetes by adjusting the body’s levels of insulin and glucagon to help regulate blood-glucose levels. The company has used Wefunder to successfully carry out a $1 million campaign. In addition, the company raised a combined $10 million from large drug makers and has received a $12 million grant from the National Institutes of Health. Beta Bionics is a prime example of the sort of startup that equity crowdfunding can help. Incorporated as a public benefit company, Beta Bionics is prioritizing the success of its device over financial gain. It is using Wefunder to enable the company to be owned by the Type 1 diabetes community and empower that community to have a stake in it. With Wefunder’s website, marketing and administrative assistance, in addition to its network of interested investors, Beta Bionics can do just that through the crowd.
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Roadblocks and Difficulties Many critics of the most expansive form of crowdfunding — Title III — which permits the greatest participation by ordinary investors — say that it would be much more affordable and highly utilized if it didn’t include so many headaches and roadblocks for entrepreneurs. The main one being the disclosure requirements that Title III still requires. While not as extensive as disclosures required under Regulation A+, Title III and Regulation Crowdfunding require CPA-reviewed financial statements for offerings of more than $100,000
about Regulation Crowdfunding, take a look at it, and say ‘This seems too complicated for me.’”
possibly making equity crowdfunding unrealistic for the majority of businesses and investors.
Funding platforms like Wefunder attempt to take some of this extra work off the table for investors and founders by handling the regulatory disclosures and accounting tasks, while still attempting to keep the up-front costs low. They typically charge approximately four percent of the funds raised for their services though, with additional fees accrued for various accounting services, bringing the typical cost of hosting a crowdfunding campaign on Wefunder to around $3,000 - $5,000 — much less than what many entrepreneurs think.
Success So Far
“Funding portals will tell you it’s simple and easy, but many startups don’t get that far. They hear about Regulation Crowdfunding, take a look at it, and say ‘this seems too complicated for me.’” and CPA-audited financial statements for offerings of more than $500,000. In addition, all companies must convert their financial records to conform to generally accepted accounting principles (GAAP). Many entrepreneurs get turned off when they fully grasp the fact that they will have to disclose information on revenue and profits to the public, both at the initial campaign launch and for every subsequent year. Many individuals in these highly competitive business arenas do not want their competitors knowing their revenues, profits and cash-on-hand. “The detailed level of disclosure and the thirdparty reviews of financial statements cause sticker shock,” said Samuel Guzik, a corporate attorney at Guzik & Associates, in an interview with CFO.com. “Funding portals will tell you it’s simple and easy, but many startups don’t get that far. They hear
“Balancing investor protections with the capital needs of small businesses and entrepreneurs is extremely difficult,” said Peter V. Letsou, dean and professor of law at the University of Memphis School of Law and a securities law expert. “The JOBS Act and the SEC’s implementing regulations have included a heavy dose of investor protection, undoubtedly more than many would have liked, thereby potentially limiting the ability of small business and entrepreneurs to effectively tap the crowd.” Experts agree that if crowdfunding is ever going to reach its full potential, companies must have the ability to attract interest and test the waters before laying down substantial sums of money on attorneys and CPAs. The upfront costs that are currently required by Title III create unwanted risk for small businesses and entrepreneurs,
Several sectors have seen a strong adoption of crowdfunding as new opportunities that offer crowd investors a good return on their investments become more prevalent. For example, the real estate industry has seen a strong adoption rate in regards to JOBS Act crowdfunding. Crowdfunded investors are participating in a variety of activities such as fixing and flipping houses, rental property transactions, commercial property developments and other real estate investments that were not available to them in the past. According to a recent report from Goldman Sachs, investment crowdfunding could become the most disruptive model of financing in the coming years. Additionally, the World Bank has predicted that the crowdfunded investments in developing countries could possibly grow to $96 billion by 2025. Two success stories come out of the equity crowdfunding arena so far: Zenefits and Elio Motors. Zenefits was one of the earlier success stories for the crowdfunding industry. It provides HR/ benefits solutions for small businesses and used Wefunder as launching pad for its success. A short timeline of Zenefits’ success follows: Raised $300K on Wefunder.com at a $9 million valuation in March 2013 Raised $15 million at a $70 million valuation in January 2014 Raised $66 million at a $500 million valuation in June 2014 That’s a 4,000 percent gain in around 16 months and one of the biggest boosts to the early reputation of equity crowdfunding amongst investors. Even Andreessen Horowitz, the venture capital company that was an early investor in Facebook, Twitter and Airbnb, saw this as impressive. “There’s no situation like this right now that anybody knows of,” said Lars Dalraard, 14
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an Andreessen Horowitz partner in 2013. “We think it’s the fastest growing cloud company ever.”
expected, according to a new U.S. government study released in February 2017.
Another important lesson to take away from the success of Zenefits — unique to crowdfunding — is the ability of ordinary investors to become real champions of the business. Early investors tell family and friends, post about it on social media platforms and recommend the product/business to anyone in their social circles. This dedicated social, word-of-mouth following gives equity crowdfunding startups a distinct advantage in regards to exposure and brand devotion.
The study, done by the SEC, found that from May through December 2016, a total of 156 companies did 163 deals. In that same time period, a total of $10 million was raised, according to the study.
Another frequently mentioned success story is Elio Motors, a vehicle maker that raised $16 million on the crowdfunding platform StartEngine from 6,600 investors in early 2016, and eventually migrated its shares to an over-the-counter market. Days after becoming the first equity-crowdfunded company to list its shares on the public markets, it surpassed a $1 billion market valuation. Elio took advantage of the Regulation A+ equity crowdfunding format, meaning it offered a “mini-IPO” or “IPO-lite,” and was the first to ever successfully take full advantage of this route.
What’s New and What’s Next? The equity crowdfunding platforms in the U.S. are clearly providing entrepreneurs with new ways of raising capital, but experts and the data agree that the number of companies taking advantage of crowdfunding and the amount of actual money being raised are still relatively small and less than
“The initial evidence is consistent with crowdfunding providing a new source of capital for entrepreneurial and small businesses that may not otherwise have had access to capital through alternative capital raising channels,” the study concludes. Still, an increasing number of Americans are jumping into the crowdfunding world, outside of the traditional hubs of such as California and Silicon Valley. According to the annual State of Entrepreneurship Report, conducted by the Kauffman Foundation, cities including Memphis, Charlotte, Minneapolis and Oklahoma City were home to the biggest percentage of companies financed via crowdfunding in 2014-2015. Many lawmakers, as well as small business and venture capital entrepreneurs, have criticized the JOBS Act and the SEC for being too strict with regulations on crowdfunding, which they say make it too costly and create too many barriers that deter companies from using it. Securities lawyers say the JOBS Act restricts the SEC from loosening the crowdfunding rules without new legislation from Congress to facilitate greater use of crowdfunding.
But the findings in the new study could help spur lawmakers into action, creating much-needed and widely desired changes on the horizon for crowdfunding. Even acting SEC chairman Michael Piwowar worries that the agency’s final rules are too restrictive. During a joint symposium at SEC headquarters in Washington D.C., which was organized by the agency’s Division of Economic and Risk Analysis in partnership with New York University’s Salomon Center for the Study of Financial Institutions, Piwowar suggested that the SEC should consider “whether any further steps should be taken to improve our crowdfunding regulations, including the use of exemptive authority,” and that Congress may need to consider “whether any legislative changes to the law should be made.” As far as new sectors that are poised for crowdfunding growth, many believe that real estate crowdfunding will become an even more dynamic and increasingly-evolving industry for growth, with a report from Crowdsourcing.org, a crowdfunding industry research firm, estimating that the sector will grow to an estimated $3.5 billion by mid-2017. There are a number of trends that experts see playing out in the real estate crowdfunding market throughout the rest of the year that also echo overall crowdfunding trends. Foreign investment in real estate is increasing at an extraordinary rate, with The Guardian reporting that a recent U.S. real estate study showed that Chinese investors have invested
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$110 billion into the U.S. market in the last five years, with that set to double in the next five years alone. With this expansion and crowdfunding’s national and international growth, it’s seen a safe assumption that a large portion of these foreign dollars will go into alternative funding options like crowdfunding.
According to Forbes, real estate investing via crowdfunding will become a large sector of growth. Per Forbes, “Those considering real estate investing, especially through crowdfunding platforms, could potentially improve their rate of return with tax efficient strategies, more specifically IRAs. The number one financial need in retirement is passive income and real estate
Finally, a popular new crowdfunding platform is predicted to gain steam in the year ahead. In late December 2016, the popular site for developers of creative ventures including movies, games and tech gadgets, Indiegogo, entered the equity crowdfunding marketplace. Already known outside of the investment world, Indiegogo’s entry into the market is expected to bring millennials and otherwise curious “armchair investors” into the fray.
“The initial evidence is consistent with crowdfunding providing a new source of capital for entrepreneurial and small businesses that may not otherwise have had access to capital through alternative capital raising channels.” Millennial investors are also predicted to flock to more crowdfunding opportunities in the year ahead, as are those Americans seeking to diversify the ways that they are investing for retirement.
crowdfunding platforms allow those saving for retirement to invest in real estate right from the golf course, with just a few clicks on their phone or tablet.”
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How The Landmark Decision is Still Shaping the Future of Juvenile Justice By Lisa Geis, Marsha Levick, Mae C. Quinn and Mary Ann Scali On May 15, 1967, Memphis-born U.S. Supreme Court Justice Abe Fortas penned the U.S. Supreme Court’s In re Gault decision that forever changed the face of juvenile justice. The 8-1 decision ensured that every child facing the “awesome prospect” of confinement at the hands of the juvenile court system be afforded “the essentials of due process and fair treatment.” Prior to Gault, courts had relied on the civil, not criminal, nature of delinquency proceedings to justify their treatment of children, which subjected court-involved youth to unbridled discretion, while fundamental fairness and procedure was arbitrarily applied. Due process for children is a constitutional matter and the Gault Court was clear in stating that “the condition of being a boy does not justify a kangaroo court.” With the exception of a few decisions in the 1970s, the Supreme Court remained relatively silent on matters of juvenile court until 2005 when the Court considered the constitutionality of juvenile death penalties in Roper v. Simmons. Since Roper, the Court has ruled on issues
including life without parole for juveniles and the “reasonable child” standard as applied to Miranda warnings. In its 2012 Miller v. Alabama opinion, relying on developmental brain science, the Supreme Court recognized what every parent knows — children are different than adults. As we mark the golden anniversary of the Gault decision, the juvenile justice landscape is ripe for change. Juvenile justice stakeholders across the country consider what will be the next Gault, Roper, or Miller. Frontline defenders know and embrace juvenile defense as a specialized field all the while trying to incorporate Supreme Court jurisprudence in their local courtrooms. Juvenile justice advocates are reaching beyond the juvenile courtroom by questioning the civil rights of children and the policing of our cities. Three of these seasoned frontline defenders and advocates have weighed in on topics related to their experience in dealing with juvenile defense and how the In re Gault decision continues to play out in today’s courtroom.
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between the establishment of the first juvenile court in 1899 and the 1967 Gault decision did the United States Supreme Court address the unique circumstances of youth in the justice system, twice in cases involving police interrogation of teenagers and the constitutionality of their subsequent statements, and once to address the process for transferring a youth to adult criminal court for prosecution in the District of Columbia.
The Court’s Evolving Stance on Juveniles: 50 Years of Change Leads to Enduring Inspiration Marsha Levick – co-founder, deputy director and chief counsel of Juvenile Law Center The establishment of the first juvenile court in 1899 was premised in part on an intuitive understanding that kids were different from adults and that those differences warranted a separate system for addressing and managing their criminal misconduct. The proponents of the first juvenile court rejected the criminal justice system’s like treatment of youths and adults and, importantly, rejected the punitive model of the criminal justice system. The early juvenile court embraced rehabilitation and treatment over retribution and punishment. Fifty years before In re Gault was decided — in 1917 — the juvenile justice system was still nascent; indeed, it was not until the 1920s that the notion of establishing a separate juvenile court took hold across the country. In those five decades leading up to Gault, there was little scrutiny of this new court, which operated behind closed doors and with little formal process. On only three occasions
In 1948, addressing the specific context of police interrogation, the Court recognized the particular vulnerability of youth to the pressures of law enforcement, writing that interrogation tactics that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” Haley v. Ohio, (plurality opinion). Fourteen years later, the Court again observed the significant differences between youth and adults in this setting: “[N]o matter how sophisticated,” a juvenile subject of police interrogation “cannot be compared” to an adult subject. Gallegos v. Colorado. In 1966, the Court decided Kent v. United States, where the Court held that certain due process protections must be provided before a youth could be transferred from juvenile court to criminal court for prosecution. Although the Court spoke broadly about the need for constitutional safeguards, the opinion has generally been read narrowly to govern only the particular Washington D.C. transfer process at issue in Kent. In the 50 years since Gault, we have been on a roller coaster ride, careening wildly between opposing poles of protection and due process and retribution and punishment. Gault required due process safeguards for youth facing delinquency charges; following the establishment of the right to counsel, to adequate notice, and the right against self-incrimination. The Court also extended the right to proof beyond a reasonable doubt (In re Winship) and the ban on double jeopardy (Breed v. Jones) to juvenile court proceedings. But the rise in violent crime in the 1980s and 1990s led to a rash of new legislation that sent hundreds of thousands of youths a year into the criminal justice system. Concern for children’s rights in court was eclipsed by fears for public safety. Predictions about a coming generation of youthful “super-predators” seeped into the public mindset. While utterly debunked only a few years later, policy makers had already stepped back in time to once again blur
the boundaries between juveniles and adults. The country returned to a 19th century model of adult punishment for children charged with serious crimes — mostly violent but in some instances even non-violent crimes. But in 2005, ten years after the rise in violent crime peaked, the U.S. Supreme Court took up the plight of juveniles convicted of a crime once again, this time to consider the constitutionality of the juvenile death penalty. In Roper v. Simmons, the Court finally ruled the penalty violative of the Eighth Amendment’s ban on cruel and unusual punishment for all children convicted of homicides before their 18th birthday, despite upholding the penalty just 15 years earlier for youths just 16 and 17 years old. While groundbreaking, Roper’s reasoning was arguably “retro.” Relying on psychological research establishing key developmental differences between youths and adults that bore directly on youth’s criminal responsibility and blameworthiness, the Court pulled the founding “kids are different” principle underlying the original juvenile court into the 21st century, wrapped it in scientific jargon and placed it squarely into the framework of the Eighth Amendment. Noting youth’s immaturity of judgement, high susceptibility to negative peer influences, and unique capacity for change and rehabilitation, the Court elevated 20th century common sense observations about children and youth to scientific certitude and constitutional doctrine.
Juvenile justice has proven to be a very dynamic, rather than static, field. As had occurred 50 years earlier when the Court confronted the lack of constitutional due process in juvenile proceedings in the 1960s, the Court’s sculpting of the Eighth Amendment to secure special protections for children in Roper led to a flurry of decisions between 2005 and 2016 that built on the Court’s ruling that children’s developmental status required a distinct — and distinctly new — calibration of their constitutional
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rights. While most of the rulings aimed to bar or limit youth’s exposure to extreme sentencing in the criminal justice system, at least one decision addressed the necessity to consider youth status in the Miranda custody determination. In Graham v. Florida, the Court barred life without parole sentences for juveniles convicted of non-homicide crimes; in Miller v. Alabama, the Court barred mandatory life without parole sentences for juveniles convicted of homicide; and in J.D.B. v. North Carolina, the Court ruled that law enforcement must take juvenile status into account — that is, consider whether the “reasonable juvenile” would feel they were in custody — in making the determination whether to Mirandize juvenile suspects. The question on all advocates’ minds in 2017 is whether we will continue to move in the direction of less punishment and more rehabilitation for youthful offenders, or whether the pendulum will swing once again to labeling children as serious offenders more deserving of adult sanctions than a juvenile court response. While the recent U.S. Supreme Court cases have substantially limited youth’s eligibility for the most severe punishments in America, there are both unanswered questions and more gains to be had. For example, formal life without parole sentences are unconstitutional for youth, but the court has yet to rule on virtual life sentences that will likely keep youth in prison until they die because of their duration. The Court has also not addressed the constitutionality of mandatory sentences in any context outside of the death penalty for juveniles. Challenges to virtual life sentences and other mandatory sentences are being pressed in lower state and federal courts around the country; advocates have already sought USSC review — so for unsuccessfully — and will surely continue to do so. The constitutionality of holding youth liable for murder, and sentencing them accordingly, under the felony murder doctrine or related accomplice theory has also been challenged in a few state courts, without success. But as Justice Breyer noted in his concurrence in Miller v. Alabama, youth’s reduced ability to weigh risks and foresee consequences makes this a questionable legal match; it is reasonable to expect continuing challenges both to the felony murder doctrine itself in cases involving young offenders, and to sentencing schemes which punish youth for
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their indirect involvement in the homicide to the same extent as the defendant directly responsible for the killing. Transfer is another area where we can expect more litigation. Since the Supreme Court’s decision in Kent in 1966, courts have largely been unwilling to extend Kent’s due process analysis to any transfer scheme other than the specific District of Columbia transfer statute specifically at issue in Kent. But the developmental differences between youth and adults that are now enshrined in constitutional jurisprudence might change this. While courts may still claim that there is no constitutional right to be tried in juvenile court, there may now be a right to have the attributes of youth considered before courts can prosecute a youth in adult court — a legal view that would call into question both direct file (or statutory exclusion) and prosecutorial discretion, two transfer schemes that treat all youth of a certain age charged with certain offenses the same. This one size fits all approach seems anathema postRoper, Graham, Miller, J.D.B., and Montgomery. Moreover, it seems equally clear that children now have at least a protected interest in juvenile court prosecution over criminal court, triggering traditional due process requirements as articulated decades ago in Matthews v. Eldridge, or, stated another way, a protectable interest in not automatically being considered an adult. Juvenile justice has proven to be a very dynamic, rather than static, field. In the 50 years since Gault was decided, we have experienced powerful swings in public opinion, public policy, and constitutional and legal analysis. Those swings have generated not just a renewed commitment and belief in the juvenile justice system, they have also brought us a slightly less punitive criminal justice system as well. As we reflect on the changes of the last 50 years, let us hope that they not only endure, but continue to inspire. 20
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The Continuing Crisis in Juvenile Defense Mary Ann Scali – executive director, National Juvenile Defender Center In 2005, the United States Supreme Court decision in Roper v. Simmons advanced the unique application of constitutional principles to youth when they relied on developmental research in handing down their decision to abolish the juvenile death penalty. Just a few years later, a courageous juvenile public defender in Chapel Hill, North Carolina, defended a 13-year-old and brought the reasoning of Roper into her local juvenile court, expanding its impact. Her client, J.D.B., was taken from his seventh-grade class at Smith Middle School by a uniformed police officer, walked through the halls to a conference room where the door was closed behind them, and questioned for at least half an hour. J.D.B.’s public defender moved to suppress his statements and argued that suppression was necessary because J.D.B. had been interrogated by police in a “custodial setting” without being afforded his Miranda warnings. This routine case on a juvenile public defender’s docket would became part of the Roper progeny when the Supreme Court decided J.D.B. v. North Carolina in 2011, requiring law enforcement to consider a child’s age when determining custody for purposes of administering Miranda warnings. Juvenile defenders, on the front lines of juvenile courts daily, are in a unique position to ensure the law of the U.S. Supreme Court reaches the local courtroom. Through well-researched advocacy, juvenile defenders thread the underpinnings of landmark Supreme Court decisions — particularly
those that affirm juvenile specific jurisprudence and fundamental due process rights for children — into individual cases. Every time a juvenile defender writes a brief, litigates a motion, tries a case, or argues for a creative disposition, they have the opportunity to include the Supreme Court’s rationale in their advocacy. And, as in the case of J.D.B., push its impact further. Every time a child stands in juvenile court, not only is their liberty at stake but there is also the potential for lifelong collateral consequences. This makes it essential for young people to receive access to well-trained, effective attorneys who will leverage Supreme Court jurisprudence and insist on children’s constitutional protections. The National Juvenile Defender Center (NJDC) has long understood the critical role played by juvenile defenders in delinquency courts. Dedicated to “promoting justice for all children by ensuring
get arrested determines whether their appointed lawyer is trained and well-resourced. There are vast differences in the quality of indigent defense delivery systems between states and between counties within states. In addition to a lack of funding and training, there is the “kiddie court” culture perpetuating the notion that juvenile court is a “lesser” court, a training ground where lawyers go for experience, and a place where due process protections are sacrificed in order to “help” the child. Examples of “justice by geography” and “kiddie court” culture can be found in many of the 22 “State Assessments of Access to Counsel and Quality of Representation in Delinquency Proceedings” conducted by NJDC. These assessments conclude that juvenile court is often a “plea mill” where underfunded juvenile defenders struggle under staggering caseloads with little
Juvenile defenders, on the front lines of juvenile courts daily, are in a unique position to ensure the law of the U.S. Supreme Court reaches the local courtroom. excellence in juvenile defense,” NJDC provides support to attorneys who represent children in juvenile court. The Supreme Court’s decisions recognizing that “children are different” pave the way for a new wave of juvenile justice reform and an emphasis on the important role of the juvenile defender. However, while the role of counsel is critical, there is a national crisis in juvenile defense. Fifty years after the landmark case of In re Gault, youth in many parts of the country still do not have access to a lawyer, or only have access to a wholly inadequate lawyer. Advocates have long known that due process violations in juvenile court are the norm and that juvenile defense for youth is deficient in most places. Despite steadfast calls for reform, too many children continue to stand in court without an effective attorney at their side. This constructive denial of due process has been referred to as “justice by geography.” Where youth
specialized training. In response to the crisis in juvenile indigent defense, NJDC has partnered with lawyers across the country to establish a community of dedicated juvenile defense attorneys and to develop the National Juvenile Defense Standards and a comprehensive training program called the Juvenile Training Immersion Program (JTIP). The Standards and JTIP are rooted in children’s constitutional rights affirmed by the Supreme Court and provide the framework for effective representation of youth in juvenile court. This crisis in juvenile defense disproportionately and significantly impacts youth of color. Youth of color are more likely to be arrested, prosecuted, sentenced, and incarcerated than their white peers. Data confirms that as early as pre-school, youth of color are more likely to be suspended, expelled, and referred to the juvenile court system. In addition, youth of color are more
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likely to be stopped by police and referred to juvenile court. In 2011, African-American youth were 269 percent more likely to be arrested for curfew violations than white youth and 44 percent more likely to be arrested for a drug offense than white youth. In 2013, African-American youth were more than four times as likely as white youth to be incarcerated.
The DOJ also made juvenile justice a priority. In 2012, they found that government agencies in Meridian County, Mississippi, were working together to “operate a school-to-prison pipeline whereby children arrested in local schools become entangled in a cycle of incarceration without substantive and procedural protections required by the U.S. Constitution.” It thereafter took legal action to hold the system accountable.
The issues of racial inequities and underfunded indigent defense systems are particularly relevant in Tennessee, where the United States Department of Justice issued a findings report from its investigation of Shelby County Juvenile Court in 2012. The findings stated that black youth were treated more harshly than white youth and that there were significant issues in the structure of Shelby County’s juvenile indigent defense system. Since 2013, NJDC has assisted Shelby County in the training of its juvenile defenders and much progress has been made as evidenced by the new Public Defender Juvenile Unit, under the direction of Stephen Bush, and the significantly lower rate of youth transferred to adult court (47 in 2015 down from 225 in 2008). The essentials of justice require children to have great lawyers who safeguard their constitutional guarantees of equal protection and due process.
Later that same year, the DOJ surfaced similar concerns about the juvenile justice system in Shelby County, Tennessee. The findings there led officials to enter into an agreement to undertake change within the system, including providing for additional attorneys to represent youth within the Memphis-area juvenile court.
There is still much work to be done. Gerald Gault was sentenced to six years at a juvenile facility for making a prank phone call. The extreme disconnect between Gerald’s low level prank and his lengthy disposition spurred the United States Supreme Court to mandate due process protections and access to counsel for all youth in juvenile court. Fifty years later, there remains a gap between the ideals of Gault and the reality of juvenile court today. However, as the Supreme Court recognizes the moral and scientific merits of treating children like children, juvenile defenders have new opportunities to carve smarter and safer outcomes for young people in our nation’s courts. Children must have access to high-quality juvenile defenders — and those defenders must be prepared to wield the awesome power of the United States Constitution.
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Calling All (Co)-Counsel: Where Do We Go From Here? Mae C. Quinn – director, the MacArthur Justice Center at St. Louis Fifty years after the Gault decision we are still waiting for many states and localities to deliver on the promises of that case. Worse, under the current federal administration we risk losing precious ground that has been gained in recent years. So how did we get here and what can be done about it? During the Obama administration, the United States Department of Justice (DOJ) played a key leadership role in supporting juvenile rights initiatives and identifying problematic jurisdictions that were falling short on assuring that kids in our courts were treated fairly. For instance, the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP) committed itself to the work of the National Juvenile Defender Center, funding much-needed training and technical assistance projects to raise the bar for juvenile representation around the country. Robert Listenbee, a former public defender from one of the strongest juvenile defense groups in the country, was tapped to serve as the director of the organization to further infuse the group’s work with the important perspective of an experienced youth advocate.
In 2013 the Justice Department turned its attention to St. Louis County, Missouri, ultimately determining in 2015 that its juvenile court system was violating the constitutional rights of youth in a range of ways — including by maintaining a conflicted court structure, failing to provide meaningful representation, and engaging in practices that resulted in the disproportionate representation of minority youth through the prosecution process. Although officials in Missouri did not fight as hard as Mississippi’s, they were not as quick to embrace change as stakeholders in Memphis. It took nearly two years for some kind of agreement to be reached. And even as it promised to undertake certain reforms, St. Louis County officials continued to disclaim any constitutional violations. To this day, although a promise to improve has been signed, seemingly little has changed in St. Louis County’s juvenile court practices. This lack of real reform in part reflects a culture resistant to change where historically there has been little scrutiny or push-back against existing practices. But it is also because the agreement reached fails to cover all that was identified as problematic by the Department of Justice — including the court’s conflicted structure where both the prosecution and probation staff actually work for the courts. Moreover, in light of the changing of the guard at the White House, Missouri system actors may be thinking they need not worry as much about enforcement by way of litigation as they had during the prior administration.
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The current Justice Department may be less likely to press forward with affirmative lawsuits to ensure constitutional compliance and the protection of rights for kids in our courts. Indeed, in light of recent actions by the current administration, including its Muslim-associated travel bans and removal of Obama-administration appointees from leadership roles, it might seem rational to bet against the DOJ bringing many civil rights suits on behalf of children in our courts. But on this 50th anniversary of Gault it may be time to return to the roots of the juvenile justice movement, where in the 1960s private attorneys and pro bono counsel were the ones who acted to advance the rights of Gerald Gault and youth like him — taking his case to the Arizona Supreme Court and then on to the United States Supreme Court.
The suit asserts that despite any agreement DOJ may have reached with the St. Louis County juvenile court, the rights of children are still being violated. This partnership among nonprofit organizations and private attorneys to advance Gault’s directives serves as important statement that no matter who is in the White House, the Constitution can and will be respected. It can also provide a litigation model for challenging other problems in the juvenile justice system — including the continuing lack of adequate probable cause determinations for children in the courts, separation of powers problems that undermine fairness of proceedings, widespread transfer of youths to adult courts, and the failure to provide youthful offenders a meaningful chance for release once incarcerated.
This lack of real reform in part reflects a culture resistant to change where historically there has been little scrutiny or push-back against existing practices. Indeed, given the continuing lack of adequate assistance of counsel for children in Missouri, the MacArthur Justice Center of St. Louis, along with allies at the ACLU and the private law firm of Orrick, Herrington and Sutcliffe, recently filed a class action lawsuit alleging civil rights violations of indigent individuals who are denied adequate assistance of counsel in Missouri’s courts — including youth in its juvenile court system.
Thus, just as the actions of President Trump barring immigrants by way of executive orders has resulted in countless individuals and institutions taking to the streets and our courts, many are now calling upon attorneys, advocates, and other allies to similarly ban together — and to join organizations like the MacArthur Justice Center as co-counsel where appropriate — to advance Gault’s promises and protect the rights of youth. 24
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They may occupy different sides of the political spectrum, but the two men representing Shelby County in the United States House of Representatives have their roots in the same place; the University of Memphis Cecil C. Humphreys School of Law.
Both men were born and raised in Memphis and are attorneys hailing from Memphis Law. They’re both bigtime baseball fans, UofM supporters and call Temple Israel their synagogue. Though oftentimes at odds politically, both have the best interests of Memphis, Shelby County and their constituents at heart, with reputations as being hardworking, extremely intelligent and passionate about what they believe in. With Memphis Law as their common starting point, both are making a truly important impact on the local and national stage.
Rep. Stephen Cohen (JD ’73), (D-TN), represents the 9th congressional district and its approximately 710,000 constituents who live in the urban and largely democrat environment of Memphis.
What do you think is the most important issue relating to Memphis and Shelby County that Congress will address in the near future?
road, and railway transportation, making the city a central distribution center for the country. All five major railway companies run through the city (Canadian National, CSX, Union Pacific, BNSF and Norfolk Southern), as well as three major highways (I-40, I-55 and Lamar Avenue).
Job creation is the number one issue. There is a great need for jobs in Memphis, not just for the economy, but to help reduce crime and improve our overall community. In the short-term, we need an infrastructure bill that will provide goodpaying jobs. In the long-term, it will come down to education for jobs in Memphis. That’s an area where monies from the Tennessee Education Lottery Program will bear fruit with the highly successful HOPE Scholarship Program and the still-to-be-determined Tennessee Promise community college program.
What do you view as our city’s and region’s greatest strength? Our central location in the United States is the city’s and region’s greatest strength. Memphis sits on the Mississippi River, our country’s largest inland waterway, and the city’s location and climate were essential to FedEx’s decision to locate their headquarters here. Today, FedEx has created more jobs than any business in Memphis and is essential to the city’s good fortunes. Memphis is one of only a handful of cities in the United States to be a major hub for air, river, 27
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After wrapping up law school in 1973, Rep. Cohen spent three years as a legal adviser to the Memphis Police Department and then served as a Shelby County Commissioner during the late 70s. He was elected to the Tennessee General Assembly in 1982 as a senator hailing from Memphis and would go on to become a stalwart
What do you consider your most significant accomplishment in your tenure as a public servant? There have been several projects that I have been able to steer to Memphis such as the $30 million Choice Neighborhood grant to revitalize Foote Homes and the $15 million TIGER grant for Big River Crossing and the Main-to-Main infrastructure project. I was also able to recommend to President Obama several Memphians for federal positions such as U.S. District Court Judge Sheri Lipman (the first Jewish District Court Judge in Tennessee history), U.S. District Court Judge John Fowlkes, U.S. Court of Appeals Judge Bernice Donald, U.S. Attorney Ed Stanton III, and TVA Board Members Lynn Evans and Ron Walter. While I am proud of these, nothing will be able to surpass the Tennessee Education Lottery Program. The lottery has produced over $4 billion for education in Tennessee and will continue to do so. Anytime I hear an advertisement for the lottery at the FedExForum or Liberty Bowl Memorial Stadium, it reminds me of all the good it has done for students in Tennessee.
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of the state legislature for the next 24 years, with a reputation as an intelligent tactician and progressively minded advocate. While serving as a Congressman, Cohen has earned a reputation as a champion of civil rights and justice, with appointments to the highly influential Judiciary Committee, the House Democratic Steering and Policy Committee and more recently, the House Ethics Committee. Rep. David Kustoff (JD ’92), (R-TN), represents the 8th congressional district and its 710,000 or so constituents who reside in the largely republican
What do you think is the most important issue relating to Memphis and Shelby County that Congress will address in the near future? With a new Republican President and Republican majorities in both the House and Senate, Congress is already tackling many important issues that will affect us in Shelby County. As a member of the House Financial Services Committee, I am glad Congress will be addressing our economy right away by rolling back DoddFrank provisions. Dodd-Frank was a poorly constructed law that unjustly targeted small businesses, our greatest job creators. Very soon, Congress will work to replace the law, get rid of needless regulations and create better access to capital for small businesses and individuals to boost our economy in West Tennessee.
What do you view as our city’s and region’s greatest strength?
suburbs of Shelby County and 13 rural counties in surrounding West Tennessee. A University of Memphis alumnus at both the undergraduate and law school levels, Rep. Kustoff began his legal career with the opening of the law firm of Kustoff & Strickland, PLLC, with UofM classmate Jim Strickland. Rep. Kustoff entered politics by chairing the Shelby County Republican party in the 90s and overseeing the Tennessee election campaigns of George W. Bush in 2000 and 2004, as well as the successful U.S. Senate campaign for Lamar Alexander in 2002. In 2006,
Rep. Kustoff was appointed by President Bush as the United States Attorney for the Western District of Tennessee, where he set his sights on cleaning up government and public corruption and fighting violent crime. After serving as U.S. Attorney, he returned to his successful private practice until his victories in the 2016 Republican congressional primary and election, where he outperformed better-funded and more wellknown candidates on his platform of law and order, crime reduction and reducing illegal immigration and bringing down the high poverty rate of West Tennessee.
and the people are the main reason why I chose to stay for college and law school, open a business and raise a family in Shelby County.
What do you consider your most significant accomplishment in your tenure as a public servant? From my time as a student at Memphis Law to my time as a practicing attorney in Shelby County, I focused on enhancing law enforcement. My proudest accomplishment is knowing that I dedicated my legal career to protecting West Tennesseans and cleaning up violent crime, drugs and government corruption in my hometown. After President Bush appointed me the U.S. Attorney for the Western District of Tennessee in 2005, I worked hard to reduce violent crime and tackled political corruption head-on as a prosecutor in the Operation Tennessee Waltz cases. Now, as a U.S. Representative, I hope to restore confidence in elected officials and will always continue to fight for a safe and prosperous West Tennessee.
Without a doubt, I believe West Tennessee’s greatest strength is the extraordinary people. You would be hard-pressed to find another region of the country with such dynamic, conscientious and talented individuals who care so deeply for their neighbors and for the preservation of their history. Memphis benefits from unique diversity, 28
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Judge Richard P. McCully was elected chairman of the board of the Touchdown Club of Atlanta. David C. Porteous was included in the 2017 edition of The Best Lawyers in America in the field of Real Estate Law.
1971 1972 1973
Glen G. Reid Jr. was recognized as a leader in the field of Litigation: General Commercial in the 2017 edition of Chambers and Partners USA.
Russell “Rusty” J. Hensley was listed in the 2017 edition of The Best Lawyers in America in the fields of Corporate Law, as well as Mergers/Acquisitions Law.
1982 Joseph T. Getz was listed in the 2017 edition of The Best Lawyers in America in the fields of Construction Law and Construction Litigation. He was also selected by Mid-South Super Lawyers for their list in the field of Construction Litigation. He was also elected chairman of the board of Evans Petree.
Richard Glassman was inducted into the Tennessee Bar Foundation as a member. David C. Scruggs was included in the 2017 edition of The Best Lawyers in America in the field of Administrative/ Regulatory Law. Richard C. Raines was recognized as a leader in the field of Real Estate in the 2017 edition of the Chambers and Partners USA.
Don Ash was reappointed by the Tennessee Supreme Court to a four-year term as a Senior Judge for out-of-state.
W. Kerby Bowling was listed in the 2017 edition of The Best Lawyers in America in the field of Administrative/Regulatory Law.
Daniel T. Robinson Jr. was elected to the Evans Petree 2017 Board of Directors. Elizabeth Stengel was listed in the 2017 edition of The Best Lawyers in America in the field of Construction Litigation. She was also selected to the 2016 Mid-South Super Lawyers list. She was named as a finalist in the Memphis Business Journal’s 2017 Best of the Bar Awards and was selected as a fellow of the American Bar Association.
1974 Neil G. Taylor was a guest speaker at the Washington, D.C. headquarters dedication to ATF (Alcohol, Tobacco, and Firearms) Special Agent Ariel Ross.
Russell Fowler received the B. Riney Green Access to Justice Award from the Tennessee Alliance for Legal Services.
Caren Beth Nichol was elected president of Evans Petree. She was also selected to the 2016 Mid-South Super Lawyers list in the field of Family Law. Additionally, she was included in the 2017 edition of The Best Lawyers in America in the field of Commercial Litigation.
Baron J. Wilkes Jr., of the Shelby County Public Defender’s Office, presented his annual Defense of Domestic Violence Cases CLE in the fall of 2016. Todd Presnell’s legal blog, Presnell on Privileges, was selected by the ABA Journal as one of the top 100 best blogs for a legal audience.
Frank N. Stockdale Carney was listed in the 2017 edition of The Best Lawyers in America in the field of employee benefits.
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Charles W. “Chip” Cavagnaro Jr. was listed in the 2017 edition of the Best Lawyers in America in the field of Labor and Employment Litigation.
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Scott Delius was recently promoted to lieutenant colonel in the Georgia Army National Guard.
Andrea M. McKinnon was named a shareholder at Evans Petree.
Pamela Williams Kelly was appointed to the board of the YWCA of Greater Memphis for a three-year term. She was also appointed to the board of the Memphis and Shelby County Film and TV Commission.
John Adcock was recently recognized as a Board Certified Specialist in Commercial Real Property Law by the North Carolina State Bar.
Kyle Cannon was selected to the 2016 Mid-South Super Lawyers Rising Stars list. Vanessa Lantin was awarded the 2016 President’s Award by the National Conference of Bankruptcy Judges at its annual meeting. M. Andrew Wohlfarth was elected to Evans Petree’s 2017 Board of Directors.
Judge Mary Wagner was appointed by Governor Bill Haslam in the fall of 2016 as Judge of the Circuit Court, Division VII for the 30th Judicial District at Memphis (Shelby County).
2009 2011 2014
Brian L. Yoakum was selected by Mid-South Super Lawyers magazine to the 2016 Rising Stars list in the field of Business Litigation. He was also elected to the Evans Petree 2017 Board of Directors. He was also selected to participate in the TBA’s 2017 Leadership Law program and was appointed to the Board of Directors of the American Heart Association — Mid-South Chapter.
Amanda Dunavant accepted a position at Latino Memphis as an Attorney Fellow. Rett Hixon joined the firm of Evans Harrison Hackett PLLC in Chattanooga, where he practices in Commercial Litigation as well as Labor and Employment. Caroline Sapp Hudson was named Nashville Bar Journal’s Contributor of the Year.
L. Clayton Culpepper III was selected by Mid-South Super Lawyers to the 2016 Rising Stars list in the field of Business Litigation. He was also listed in the 2017 edition of The Best Lawyers in America in the field of Commercial Litigation.
Diana Comes was named the 2017 President of the Association for Women Attorneys (AWA).
Roxana “Roxy” Rudolph joined the firm of Adams and Reese, LLP as an associate in the in the Litigation Practice group in its Memphis office.
Ross Smith joined the firm of Farrar & Bates, LLP in Nashville, Tennessee, and was admitted to the Middle District of Tennessee and Eastern District of Tennessee.
Darius Walker Jr. was appointed as an Assistant City Attorney for the City of Memphis in the area of Litigation.
Allyn Lowell received board certification in Labor & Employment Law from the Texas Board of Legal Specialization. Megan E. Arthur was selected by Mid-South Super Lawyers to the 2016 Rising Stars list in the field of Family Law. George V. “Harley” Steffens IV was selected by Mid-South Super Lawyers magazine to the 2016 Rising Stars list in the field of Real Estate. 30
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FACULTY ACCOMPLISHMENTS Lynda Black
Professor Black’s article, “The Long Arm’s Inappropriate Embrace,”
Professor Jones’ article, “Commerciality and Fair Use,” was
was published in the St. John’s Law Review.
published in the Wake Forest Journal of Business & Intellectual Property Law.
Professor Black also gave a presentation titled, “Sacrificing Students on the Altar of Athletics: What We Have Learned from
Professor Jones presented a paper topic, “Edicts of
O’Bannon v. NCAA,” at St. Mary’s College of Law.
Government: Copyright in State Legal Materials,” at the 2017 Works-Progress Intellectual Property Colloquium held at
Additionally, Professor Black participated in the South Central
Boston University School of Law.
Association of Law Schools Faculty Scholar Exchange by presenting her paper, “It’s In the Game: Where Antitrust Meets
Professor Jones now serves on the Board of Directors and
Amateurism,” at St. Mary’s College of Law.
serves as the Secretary of the Mid-America Law Library Consortium (MALLCO).
Professor Black represented the University of Memphis at the Faculty Athletic Representatives Association (FARA) Annual
Meeting and Symposium in Indianapolis
Professor McClurg’s article, “The Second Amendment Right to be Negligent,” was published as the lead article in volume
68, issue 1 of the Florida Law Review in 2016. Six scholars
Professor Bock’s article, “Patent Quantity,” was published by the
have agreed to write reply articles to McClurg’s work. He also
University of Hawaii Law Review.
published “The Final Stretch” in the National Jurist in fall 2016,
offering practical tips for students leading up to final exams. In its summer issue, the National Jurist published an article
Professor Campbell accepted the invitation to serve on the
featuring McClurg’s “1L of a Ride Video Course,” a 13-part law
Alliance for Nonprofit Excellence’s Community and Economic
school prep video series.
Development Field Committee. Donna Harkness Professor Harkness was invited to give a presentation at the 2017 AALS Annual Meeting in San Francisco as part of a panel entitled “Old Age in the Digital Age: How New Ideas and Technology Are Disrupting Aging,” co-sponsored by the Law and Aging and Law, Medicine, and Health Care Sections. Professor Harkness has also been selected to serve on the Editorial Board of the NAELA Journal, published semi-annually by the National Academy of Elder Law Attorneys. Professor Harkness authored materials and presented on “Planning for Same Sex Couples After DOMA Repeal” and “Elder Law vs. Estate Planning: Reconciling Conflicting Priorities,” for the National Business Institute’s Estate Planning Oddities and Challenges seminar last year. Lee Harris Professor Harris’ textbook, “Mastering Corporations and Other Business Entities,” had its second edition published.
Steven Mulroy Professor Mulroy’s article, “The Bright Line’s Dark Side: PreCharge Attachment of the Sixth Amendment Right to Counsel,” was published in the Washington Law Journal. Professor Mulroy’s article, “Hold On: The Remarkably Resilient, Constitutionally Dubious 48-Hour Hold,” was recently cited in a Department of Justice Civil Rights Division report. His focus on the issue of “48 hour holds” was the main focus of the investigation and the main basis for finding a pattern and practice of discrimination. His work on this same law review article and the related DOJ report was also cited in a recent editorial in the New York Times titled, “Where Secret Arrests Were Standard Procedure.” Professor Mulroy’s article, “Sunshine’s Chill: Overboard American Open Meetings Laws & the Limits of Disclosure,” was published in the symposium book of the International Symposium on Freedom of Information & Governmental Transparency in the Open Government Era, University of Paris 1 Pantheon-Sorbonne.
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John Newman Professor Newman’s book chapter, “Innovation Policy for Cloud-Computing Contracts,” was published in the Research
Handbook on Digital Transformations. Additionally, professor Newman’s article, “Antitrust in Zero-Price Markets: Applications,” was published in the Washington University Law Review.
Lynda Black Professor Black was awarded tenure and promoted to associate professor in 2017.
His paper, “The Myth of Free,” was also one of only three “Call for Papers Winners,” selected for presentation at the 2017 SEALS Conference.
Boris Mamlyuk Professor Mamlyuk was awarded tenure and promoted to
Professor Newman was a featured speaker at the FedEx
associate professor in 2017.
Institute of Technology at the University of Memphis titled, “Blockchain: Legal and Economic Issues.” David Romantz Professor Romantz was asked to serve on the Advisory Committee for the Public Safety Institute at the University of
Daniel Schaffzin Professor Schaffzin was awarded tenure and promoted to associate professor in 2017.
Memphis. Daniel Schaffzin Professor Schaffzin was named to the Executive Committee
*The University of Memphis Board of Trustees has approved these promotions and tenure beginning in academic year 2017-2018.
of the Association of American Law School’s Section on Clinical Legal Education for 2017. Katharine T. Schaffzin Professor Katharine Traylor Schaffzin was selected by the University of Memphis Faculty Senate to serve as the faculty representative on the inaugural Board of Trustees for the University of Memphis. Professor Schaffzin will serve as a Trustee for a two-year term. Christina Zawisza Professor Christina Zawisza was recognized as a Memphis Attorney for Justice by Tennessee Supreme Court Justices Jeffrey S. Bivins and Holly Kirby at the Memphis Bar Association Annual Meeting. The recognition is awarded to all attorneys who have given 50 or more hours of pro bono service each year.
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drilling by TVA (and other heavy users) might crack the clay that protects our aquifer water, creating a route for contaminants to seep in. If that happens, we do not have the technology to fix a crack in the clay and, once there is a contamination, wells are shuttered. Because we believe the risks are real, at the state level a bipartisan group of West Tennessee legislators — Senator Brian Kelsey (R-Germantown), Rep. Ron Lollar (R-Bartlett), Rep. Curtis Halford (R-Dyer), GA Hardaway (D-Memphis), and yours truly (D-Memphis) — have organized. We have filed a group of bills that might help protect our pristine water for the future.
CREATING PUBLIC AWARENESS
FOR OUR AQUIFER
By Lee Harris, senator and professor
Right now, when a company needs water for their business needs, they do not necessarily call Memphis Light Gas & Water. They call in a drilling specialist — frequently they all use the same one — and drill a hole straight down to the Memphis aquifer. No fuss, no real hassle.
of other users draw as much or even more every day. In total about 200 million gallons are already pumped each day. With an estimated 57 trillion gallons of the good stuff beneath our feet right now, there seems to be plenty of water to go around. Thus, even at 3.5 million gallons a day, it seems unlikely TVA will deplete our aquifer water supply.
I have seen the pumps that many companies utilize. They are small, unimpressive, and easy to miss. Nevertheless, these small holes can often each draw to the surface 1,500 gallons of water per minute. It bears repeating: Each well can draw 1,500 gallons per minute from the Memphis aquifer.
However, that is not the worry. We know that there is enough drinking water for today’s generation. What is important is that we make sure that the aquifer is preserved for future generations. That means we need to be careful with respect to the precedents we set today, since those precedents have a funny way of leading to negative consequences later.
Right now, Tennessee Valley Authority (TVA) plans to pump approximately 3.5 million gallons of aquifer water each day to cool its new powergenerating plant in Southwest Memphis. Although this sounds like a lot of water, it is not. A handful
The ease with which water users can access our clean drinking water source should give us all pause. Drilling creates some risk of contamination of our water. For instance, scientists say that the
One of them proposes a regional water authority to ensure public input on significant water uses. The other bill proposes that heavy water users give the public advanced notice before drawing significant amounts of water from our aquifer. These bills centered on public input and notice are in addition to separate efforts by the Sierra Club’s legal team to get a court to enjoin the drilling. Finally, while legislation can be important, it is just as important to make sure that the public is aware of this vital asset. Consequently, Senator Kelsey and I recently organized a public fact-finding trip with some experts in our region. The goal was to learn about our aquifer, the many uses of the water drawn from it, and the treatment process for our drinking water. It is not easy to make folks aware of something, like the aquifer, that they cannot see, touch, or feel. It is also a very technical topic, where intelligent people and even trained scientists can disagree. Everyone should know that our aquifer makes West Tennessee a very special place. Thus, perhaps the most important goal of those concerned about drilling and preserving our water source is to generate public awareness. Only after, comes action. State Senator Lee Harris represents District 29 in Memphis and serves as Senate Minority Leader. He is also the FedEx Professor of Law at the University of Memphis Cecil C. Humphreys School of Law.
ZA FI &
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WHEN YOU MAKE A GIFT TO MEMPHIS LAW, YOU MAKE AN INVESTMENT IN THE FUTURE SUCCESS OF A STUDENT.
“We are thankful that the University of Memphis Law School graciously accepted our offer to establish a scholarship to help an outstanding third-year law student. Zachary has an outstanding future as an attorney and we hope that this scholarship supports his efforts to set high standards for everyone working in the area of personal injury law.” — Alex Saharovich, Partner – Nahon Saharovich & Trotz, PLLC See how you can make an impact. Visit memphis.edu/law/alumni/how-to-give.php.
ZACHARY JOHNSON, CLASS OF 2017 FIRST RECIPIENT OF THE NAHON SAHAROVICH & TROTZ LAW FIRM SCHOLARSHIP 34
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U.S. POSTAGE PAID MEMPHIS, TN
PERMIT NO. 207
1 North Front Street Memphis, TN 38103-2189
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