Memphis Law : Spring 2016

MEMPHIS LAW MAGAZINE / SPRING 2016

A publication of the University of Memphis Cecil C. Humphreys School of Law

+ HEALTH CARE’S DIGITAL FUTURE + SKETCHING THE LAW

Spring 2016 | Issue 5 Dean

Peter V. Letsou

Executive Editor Ryan Jones

Contributing Writers Ryan Jones John Newman Toby Sells

Photography

Rhonda Cosentino Ryan Jones

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 www.memphis.edu/law To submit story ideas, alumni updates, or for other ML related inquiries, please contact executive editor Ryan Jones at rjones1@memphis.edu.

For limited advertising opportunities, please contact Ryan Jones at rjones1@memphis.edu.

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.

UOM252-FY1516/6M Hot Graphics

DEAN’S LETTER

A Strategic Plan for our Future Dear Friends, With this issue of the ML magazine, I’m pleased to announce a new strategic plan for our law school’s next five years and to share with you its key features. This plan will help us provide an affordable, intellectually rigorous and practiceoriented legal education in the heart of one of America’s great cities.

From its founding, Memphis Law has taken a practice-oriented approach to teaching. This program effectively combines a thorough grounding in legal doctrine with the practical skills and ethics training necessary to create highly competent, practice-ready professionals. As the University of Memphis has grown into a major research institution, so too has the ambition of the Memphis Law faculty. Through their scholarship and participation in civic, bar and governmental activities, Memphis Law professors have influenced law and public policy over a wide range of issues.

The State of Tennessee, the Memphis community, the University and the Memphis Law alumni demonstrated their confidence in the future of Memphis Law when they supported the move of the law school from the University’s main campus to our magnificent new home overlooking the Mississippi River. As I’m sure you already know, our new campus is more than twice the size of our old campus and has been recognized as the best law school facility in the nation.

Our new strategic plan provides a blueprint to guide the law school through the next five years.

Our fundamental mission has not changed since our founding, but the legal profession has undergone significant transformation, especially in recent years. These changes have created new challenges for the nation’s law schools.

As Memphis Law began the strategic planning process to address today’s challenges, it did so from a position of strength, including an outstanding faculty dedicated to student success; a strong, vibrant and growing experiential learning program; an especially close relationship with the profession, the courts and the community; a growing focus on community engagement and community service; a tradition of success in both bar passage and employment outcomes; and an extraordinarily supportive alumni and community base.

The plan we have developed builds on these strengths. You can get a brief overview of the initiatives in our strategic plan in the sidebar to the right of this column. Additionally, on the last page of this issue of ML, there is a thorough explanation of how we will measure the success of this strategic plan in the coming years.

We will use our plan to advance our mission of providing an outstanding legal education to our students and continue our development of new and innovative programs that will enable Memphis Law to continue to stand out in the constantly evolving legal education landscape.

I look forward to reporting back to you as we implement this plan.

Cordially,

Peter V. Letsou Dean

INITIATIVE ONE: COMMUNITY ENGAGEMENT

We will leverage our position as Memphis’ law school by serving the community through innovative doctrinal programs, clinics and externships, and institutes and certificates of learning in areas related to Memphis’ needs.

INITIATIVE TWO: ACADEMIC PROGRAMS AND CURRICULUM

We will review and appropriately revise our curriculum to ensure that our students have the knowledge and skills necessary to meet the needs of today’s practice.

We will also provide our students with the means to better demonstrate the skills they have mastered to potential employers.

INITIATIVE THREE: EXPERIENTIAL KNOWLEDGE AND PROFESSIONAL SKILLS

We will expand our experiential learning programs into fields and areas of law especially relevant to Memphis and the region. We will also continue to emphasize and extend existing classroom and cocurricular experiential learning opportunities.

INITIATIVE FOUR: FACULTY, RECRUITMENT, RETENTION AND DEVELOPMENT

We will seek to attract and retain excellent teachers, but in today’s academic environment, excellent teaching and excellent scholarship go hand-in-hand. Accordingly, we seek to build a community of scholars, which will also enhance our reputation.

INITIATIVE FIVE: STUDENT RECRUITMENT AND SUCCESS

We will continue to attract a highly qualified and highly diverse student body and provide quality services so students can obtain the positions of their choice. To achieve this goal, we must be financially accessible to students from Tennessee and beyond, and we must find creative ways to appeal to an even wider range of students.

INITIATIVE SIX: INFRASTRUCTURE AND ADMINISTRATIVE RESOURCES

We will provide the infrastructure and administrative resources necessary to support all of the initiatives in the strategic plan. We will retain a highly talented, dedicated and committed staff, properly maintain our magnificent facility, improve the visibility of our plans, programs and achievements, and continue to expand our relationship with our alumni.

For a complete copy of the Cecil C. Humphreys School of Law strategic plan, see memphis.edu/law/ documents/strategicplan_web.pdf.

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CONTENTS

FEATURES 10 14

REGULATE OR INNOVATE? A LOOK AT THE LEGAL ISSUES SURROUNDING DIGITAL HEALTH TECHNOLOGY

BY TOBY SELLS The healthcare industry is a tidal wave of information that’s fed daily by technology, pushing it bigger, faster, and fuller ever onward. No industry creates, collects, reviews, and stores neither the amount nor the variety of data than the healthcare industry.

This article examines some of the legal issues surrounding emerging technology in the healthcare field and what is being done to safeguard patients’ privacy, while also allowing for innovation in the field.

20 SKETCHING THE LAW

BY RYAN JONES ARTWORK BY JEANNE SEAGLE AND BOBBY SPILLMAN For years, courtroom sketch artists were traditionally the general public’s eyes at highprofile trials. It’s an echo from a bygone era in American legal history. However, the ranks of courtroom artists have thinned as technology has evolved and states have steadily lifted longstanding bans on cameras in courtrooms. Take a look at some examples from MidSouth courtrooms over the years.

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BITCOIN. THE MOST KNOWN UNKNOWN.

BY RYAN JONES Bitcoin may be the most famous thing in the world that no one truly understands.

As it gains in popularity, businesses and governments around the world are being forced to deal with the idea of Bitcoin as a serious concept. From taxation and currency matters, to regulatory questions and money-laundering concerns, the legal arena is replete with issues related to Bitcoin and its technology.

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DIVISIONS

6 0 18 TRUE BLUE INTERVIEW

Mayor Jim Strickland (JD ’89) invited ML into his office at City Hall to talk about the

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BRIEFS: News + Events

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A PARTNERSHIP WITH A DIFFERENT POINT OF VIEW

BY RYAN JONES Memphis Law’s new Medical-Legal Partnership with Le Bonheur Children’s Hospital and Memphis Area Legal Services gives students a chance to step outside of the courtroom and into the hospital.

8 STUDENT PROFILE:

It’s Summertime and the Living is Easy (But Not That Easy) ML asked five Memphis Law students to tell us about their summer job experiences around the country.

past, present and future of Memphis and the evolving legal landscape of the city.

22 SETTING THE BAR:

Memphis Law Alumni Class Notes

26 FACULTY ACCOMPLISHMENTS

Lakevia Perry

28 WHAT IS THE REAL COST OF FREE?

Washington D.C. Brian Burns

Caroline Gordon

BY PROFESSOR JOHN NEWMAN

Covington, TN

Professor Newman’s paper, “Anti-trust in Zero-Price Markets: Foundations,” was

Memphis, TN

recently published in the University of Pennsylvania Law Review. In the short article Thomas Morrison

that follows, he touches on some of his points and ideas in that article to help the reader understand that “free” online products are not really and truly “free,” and how that could potentially harm our society and marketplace.

Lyle Gruby

Jacksonville, FL

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BRIEFS: NEWS + EVENTS THE HON. ROGER PAGE (JD ’84) APPOINTED TO TENNESSEE SUPREME COURT Roger Page (JD ’84) to the Tennessee Supreme Court.

Judge Page has been a judge on the Tennessee Court of Criminal Appeals since December 2011 and will join

In the past few months, the law school has hired several new staff members. We are proud to welcome the following individuals to Memphis Law! Our new public ROGER PAGE

Tennessee Gov. Bill Haslam has appointed the Hon.

NEW LAW SCHOOL HIRES

fellow Memphis Law alumna Justice Holly Kirby

William Terrell (JD ’15) of Glassman, Wyatt, Tuttle & Cox, PC, has been selected to study internationally this year, through a program with the American Inns of Court.

interest matters. Additionally, Kara Phillips has joined the Memphis Law team as the new assistant director recruit even more prospective law students to Memphis Law. The law school also welcomed our new business officer, Chris Whitehead, in early 2016. The law library

TENNNESSEE SUPREME COURT AT MEMPHIS LAW The Tennessee Supreme Court visited Memphis Law and held oral arguments in the law school’s historic courtroom on November 5, 2015. The court heard two cases during

has also hired several new staff members as well, with the addition of Steve Richardson, information services librarian, and Meghan Cullen, law library assistant III.

FREDERICK DOUGLASS MOOT COURT TEAM

Through the Pegasus Scholarship Trust, two American

its visit, one criminal and one civil. The court’s visit offered

Inns of Court members travel to London, England, for six

The Memphis Law Frederick Douglass Moot Court Team,

a valuable opportunity for students to see some of our

weeks to study the English legal system. The Pegasus

consisting of 2Ls Dawn Campbell and Erica Coleman, and

state’s leading jurists in action, including our own alumna

Scholarship makes it possible for gifted young lawyers to

coached by William Terrell (JD ’14), advanced through the

and our first Tennessee Supreme Court Justice, Justice

learn about the practical workings of the common law

regional competition to the National Frederick Douglass

Holly Kirby (JD ’82).

Moot Court Competition in Baltimore.

SOUTHERN CLINICAL CONFERENCE

UNITY MARCH

The 2016 Diversity & Pre-Law Day was held at the law

The 2015 Southern Clinical Conference was hosted at

February. Over 50 Memphians gathered in Court Square

school on February 19. The Keynote Speaker was the

the law school in the fall. The theme of the conference

Hon. Ed Stanton, III - United States Attorney for the

was Confronting Issues of Race and Diversity in Clinical

Western District of Tennessee and federal judge for the

Legal Education. Professors and clinical directors from

U.S. District Court for the Western District of Tennessee,

law schools across the country attended the conference,

pending U.S. Senate approval.

which was coordinated and planned in large part by

system in countries other than their own and to form enduring links with lawyers in those countries.

2016 DIVERSITY & PRE-LAW DAY

Memphis Law Assistant Professor of Law and Director of

MEMPHIS LAW RECEIVES HEED AWARD The University of Memphis Cecil C. Humphreys School of Law was awarded the 2015 Higher Education Excellence in Diversity Award (HEED) from INSIGHT Into Diversity magazine, the oldest and largest diversity-focused publication in higher education. Memphis Law is one of only five law schools in the nation to receive the award.

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Office to assist our students with pro bono and public

for admissions, where she will help Dean McClellan

(JD ‘84) on the State’s highest court.

WILLIAM TERRELL (JD ’14) AWARDED INNS OF COURT TRIP TO EUROPE

interest counselor, Jerri Green, joins our Career Services

Experiential Learning Danny Schaffzin.

DUBERSTEIN BANKRUPTCY MOOT COURT TEAM The Duberstein Bankruptcy Moot Court Team of Meagan Jones and Deniger Cobb advanced to the semifinals of the national competition in New York in the spring. They advanced to the top 16 out of 50+ teams. The Memphis Law 2L team performed admirably as well.

Memphis Law student organizations, led by SBA and BLSA, organized and led the Memphis Unity March in late to celebrate unity and stand together for justice, dignity and respect for all. Local attorney Maureen Holland and former Mayor AC Wharton spoke to the crowd before all participants marched along Main Street to the National Civil Rights Museum.

February 19, 2016

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the Center for Children’s Law & Policy,

Loading the Deck for a Trauma-Informed Juvenile Justice System

HEART DISEASE

2016-17 UNIVERSITY OF MEMPHIS LAW REVIEW

t oymen

from Mark Soler, executive director for

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Justice System” featured presentations

Q Juvenile justice

Deck for a Trauma-Informed Juvenile

semester.

in the hand of

Policy Reform

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expected to officially open at the start of the Fall 2016

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the Hand of Policy Reform: Loading the

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Juvenile Court and in related matters. The clinic is

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symposium on February 19. “An ACE in

substanc e abuse

charged in delinquency proceedings in Shelby County

adverse childhood experiences

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on Depressi

for Health Law & Policy held its annual

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The University of Memphis Institute

Clinic will provide legal representation to youth who are

an

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Q

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new Children’s Defense Clinic. The Children’s Defense

I N S T I T U T E F O R H E A LT H L A W & P O L I C Y 2 0 1 6 S Y M P O S I U M

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The law school is moving forward with the creation of a

HEALTH LAW INSTITUTE SYMPOSIUM

J

CHILDREN’S DEFENSE CLINIC

Washington, DC; Stephen Bush, Shelby County Public Defender; the Hon. Dan

The incoming Volume 47 Editorial Board members of the

H. Michael, Shelby County Juvenile Court Judge; Senator Mark Norris (R- Collierville); Chris Peck, CEO, ACE Awareness

University of Memphis Law Review are as follows:

Foundation; and Dr. Altha Stewart, director, Center for Health in Justice Involved Youth, UTHSC, College of Medicine.

Lyle Gruby, editor-in-chief Maygan Peaks, managing editor Jordan Emily, senior articles editor Olivia Garber, senior notes editor Taylor Oyaas, research editor Will Podesta, business editor Pablo Davis, symposium editor Gale Robinson, articles editor McKenzie Reed, articles editor Alexis Peddy, articles editor Danielle Salton, articles editor Kristen Downey, notes editor Dylan Gillespie, notes editor Callie Tran, notes editor Dylan Holzemer, notes editor Suzanne Lamb, notes editor Zach Johnson, notes editor

NEIGHBORHOOD PRESERVATION FELLOWSHIP The City of Memphis has provided the law school with funding to create a “City of Memphis Neighborhood Preservation Fellowship” for a recent graduate. Once selected, the fellow will assist in case handling and management for Neighborhood Preservation Act cases

LAW REVIEW ANNUAL SYMPOSIUM The 2016 Law Review Annual Symposium “Urban Revitalization: The Legal Implications of Remaking a City”, was held at

and other Environmental Court cases filed by the City.

Memphis Law on March 18. This year’s symposium featured presentations from both local and national experts, such as

The fellow, who must be a Memphis Law alumni, will

Steve Barlow, Tommy Pacello, Josh Whitehead, Joe Schilling, Kermit J. Lind, A. Mechele Dickerson, and many, many more

work out of the law school’s Neighborhood Preservation

highly regarded legal and urban revitalization experts.

Clinic office.

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Memphis Law’s new Medical-Legal Partnership with Le Bonheur Children’s Hospital and Memphis Area Legal Services gives students a chance to step outside of the courtroom and into the hospital.

Having a child who is struggling through an illness can be one of the most difficult things for a parent. It can be even more difficult and intimidating for someone with little money, education or other valuable resources at their disposal. Hospitals can be a scary place for someone in these circumstances, which is why hospitals and healthcare systems across the country have begun establishing “medical-legal partnerships.”

The University of Memphis Cecil C. Humphreys School of Law, Memphis Area Legal Services (MALS) and Le Bonheur Children’s Hospital formed their own regionally unique Medical-Legal Partnership (MLP) last year called Memphis CHiLD, with a special legal clinic located onsite at Le Bonheur, designed to help patients with unique legal needs find the help they need to improve their health and circumstances.

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Types of Issues New to Memphis, a mother and her 8-year-old son move into a house that they can afford because they were able to secure a Section 8 voucher, a federal funded housing voucher for low-income families. Over the next year, the child visits the Emergency Department at Le Bonheur 11 separate times due to repeated asthma attacks.

He’s admitted twice and is so sick that one of those admissions is to the Intensive Care Unit. His mother tells the medical staff at the hospital that her son is coughing and wheezing at home despite the fact that he takes his medication every day and no one in their home smokes.

Dr. Lauren Mutrie, a pediatrician at Le Bonheur who is a key member of the MLP team, treats the child and asks about conditions in the home. It turns out that the house has a mold problem, but the landlord has refused to take action despite repeated requests from the family. The family cannot afford a lawyer to address this landlordtenant issue. Thanks to the MLP Clinic, Dr. Mutrie can now refer the family to the MLP team, consisting of several Memphis Law students, a supervising attorney

MK Smith

Benjamin Lewis

The Medical-Legal Partnership Clinic was such a rewarding

As law students and even as young attorneys, we are

and valuable addition to my law school experience.

typically relegated to working amongst individuals in

Working in the clinic allowed me to grow both personally

the legal field, so getting to branch out and experience

and professionally. Participating in this clinic exposed

some interdisciplinary education was very eye-opening.

me to some of the needs within our community that

It was quickly evident to me that doctors and attorneys

generally go unnoticed and unaddressed. I was exposed

approach problems very differently. A typical initial

to individual client concerns, which allowed me to identify

meeting for a doctor and patient may last only minutes,

great policy issues that directly relate to my interest

whereas a first consultation between an attorney and

in health law, and I learned how to truly advocate for

client can last hours, and where patients often have a

my clients and their desires. In many of the cases we

general idea of what ails them, clients usually do not

handled, we were dealing with habitability issues, utility

know the specifics of their legal problem. Although there

issues, or governmental entities, all of which potentially

may be small distinctions in the methods used by doctors

forced us to confront difficult obstacles before reaching

and attorneys, I found that it is very easy to connect

our clients’ goals. Throughout the clinic, we represented

to professionals in the medical field. All of the doctors,

clients who did not have many advocates, or were not

residents and medical students that we worked with

able to afford to hire an advocate on their own, which

were eager to learn about the MLP, just as we were eager

truly made the experience special. We all became truly

to learn more about our clients’ diagnoses and medical

invested in each of our cases.

history.

Gracie Gelfand The Medical-Legal Partnership Clinic was my first opportunity to work closely with clients and handle their individual cases from start to finish. It taught me first and foremost how to interact with a client and ask them often delicate questions in a both useful and sensitive manner. I learned very practical skills such as how to interview a client and how to discern what information given to you by the client is relevant and what is tangential. Real-life clients are not a legal fact pattern

“Throughout the clinic, we represented clients who did not have many advocates, or were not able to afford to hire an advocate on their own, which truly made the experience special.”

on an exam and all of the information needed to solve the issue may not be neatly placed in front of you.

Meghan Jones

and caseworker from MALS, and a team of medical

Our clients’ lives are difficult and a constant struggle, whether

professionals, in order for the landlord-tenant issue to be

it’s a financial struggle or a struggle to ensure physical and

resolved and the overall health of the child (and others in

work do good things. On one occasion, I met with a

emotional safety.

mother and her 20-year-old educationally challenged

the home) improved.

What I loved most about the MLP Clinic was seeing my

son. She was hoping for an advanced care directive to I had never worked in a legal-aid setting before this clinic.

be put in place to protect her son’s health. I met with

Lessons Learned, Experience Gained

So, even though I understood the concept of poverty, I had

the mother, talked to the son in the hospital room, and

never seen personally the numerous ways in which simply

immediately went down to draft the plan. Once drafted,

being poor affects the way in which you have to approach any

I had to meet with the son to go through every question

given situation. It is hard to care about what a lawyer is asking

and explain what everything meant. After he gave an

The students in the inaugural semester of the MLP Clinic

you to do for them when you are more concerned with how

answer to everything, they both signed and it was able to

all gained the type of incredible experience that the law

you are going to keep your lights on at your home or how

be implemented that day. All the mother wanted was to

school hoped they would when it first devised the clinic

you are going to feed your child today. When disagreements

know that if she had to leave the hospital to go to work,

and partnership with Le Bonheur and MALS. Several have

with clients occurred, I had to remind myself of this and

she wouldn’t have to worry about her son agreeing to

continued to work on cases pro bono, even though their

understand that a client may not be frustrated with me, but

something he didn’t realize he was agreeing to. To be

semester in the clinic has wrapped up, and all have come

rather the situation. I ultimately had to realize that I may not

able to give her that peace of mind, while also helping the

away from the clinic with a new understanding of poverty

be able to fully sympathize with my client, but I could always

patient, had to be, by far, my favorite experience from the

and its tangible grip on a person’s health and quality of life.

empathize.

MLP clinic.

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It’s Summertime and the Five Memphis Law students reflect on how their summer jobs have helped define their legal education and personal growth.

Lakevia Perry

Washington D.C. Brian Burns

Law school is an extremely stressful time, no one would argue that. It’s three years of harrowing sacrifice, stressful exams, and competitive situations that hone the willpower and skills of our future attorneys. The glorious months between spring and fall semesters could be seen as a much-needed respite from responsibilities, but for many law students, it’s these summer months that let them gain some wide-ranging experience and much-needed reflection on their legal careers.

These are the stories and lessons learned by just a few of our law students during their summers spent at jobs in the Mid-South and around the country.

Caroline Gordon

Caroline Gordon

Class of 2016 Covington, TN Memphis, TN Thomas Morrison

Jacksonville, FL

Lyle Gruby

During my law school summers I clerked for the Law Office of J. Houston Gordon in Covington, Tennessee.

The most memorable part of this job was the hands-on experience I gained. I assisted in drafting appellate briefs to the Tennessee Criminal Court of Appeals and drafted pleadings. I also attended hearings, including arguments, before the Tennessee Court of Appeals.

I have always been interested in being a trial attorney, but I did not have an understanding of what that meant. Like many people, I had a picture in my mind of an attorney passionately arguing in front of the judge and jury. But of course this is only a small part of trial practice. The biggest part of trial practice is the preparation. It is researching the issues, gathering the facts, conducting discovery, and making your case as airtight as possible before even entering the courtroom.

The biggest lesson I learned is to always remember that being an attorney is not about me. It is not about my own

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ego or my own goals and plans for the case. It is about being an advocate for your client. You have to focus on the client and his or her goals. An attorney is meant to serve his or her client, not simply win the case. Winning the case is not simply getting a favorable jury verdict, it is recognizing that some clients do not want to go to trial and working creatively to achieve the client’s goal.

LaKevia Perry Class of 2016

While externing in the Juvenile Division of the Shelby County Public Defender’s Office last spring, I worked with April Frazier-Camara, an amazing attorney, who suggested that I work outside the state of Tennessee over the summer. During our discussion, I decided on Washington, D.C., and began my search on PSJD.org, a public interest job resource that all Memphis Law students have access to. On PSJD, I found a posting for a legal and policy intern at the National Juvenile Justice Network, (NJJN). NJJN is a policy organization with member organizations located in 40 states that supports and enhances the work of statebased juvenile justice advocacy groups. As a legal and policy intern, I helped with their annual conference where member organizations send representatives from around the country, researched positive state legislative changes regarding juveniles, and researched the status of juvenile sex offender laws around the country.

I was mainly attracted to NJJN for two reasons: (1) I was able to explore whether I wanted to practice law or go into policy work; and (2) I was able to work with an organization dedicated to my passion for all things related to children. However, meeting some of the most influential people in the field of juvenile justice reform was the best part of working at NJJN. My summer job experience at NJJN helped me realized that I could go anywhere and do anything with my law degree. After this experience, I know I can affect the change I wish to see!

Lyle Gruby Class of 2017

I externed for the United States District Judge of the United States District Court for the Western District of Tennessee Sheryl H. Lipman in the summer of 2015. I

sent in my application right before the semester started and interviewed the first week of school last spring. I wanted the job because learning to legally write and research seem to be the most important skills we should have upon entering the legal field, and I knew this externship would involve a lot of it. It will be forever memorable to me because of the writing critiques I got directly from Judge Lipman and her clerks. They are lessons I will use for the rest of my legal career. The most difficult part was maintaining the level of polish required for a publishable order. The experience allowed me to better conceptualize what I am learning at the law school by giving me real world examples to think about when learning a new concept. Externing for Judge Lipman allowed me a view into the professionalism and skill required to be a successful legal professional.

Brian Burns Class of 2016

I spent one summer during law school working for the Commodities Futures Trading Commission at their headquarters in Washington D.C. The commission regulates the trading of futures contracts in everything from bushels of corn, to interest rate swaps. The CFTC is roughly analogous to the SEC, and, in fact, the agencies have joint jurisdiction over the trading of futures on stocks.

I was assigned to the enforcement division, which was divided into teams of 4-6 attorneys who followed a case from initial investigation through discovery and trial if necessary. I was fortunate to work on several projects and got a glimpse of several stages of the process. I performed background investigations on alleged abuses in the energy sector, sat in on depositions of traders suspected of manipulating markets, and produced internal legal memos regarding pending litigation.

After an opportunity at a local firm fell through at the last moment, I expanded my job search and was applying all over the country. The post for this position did not appear at USAjobs.gov until a week before spring finals started.

As I had been doing for weeks, I drafted another cover letter, tweaked my resume and sent it in. By the time I heard back from the CFTC, I had been working in Chicago

By Ryan Jones

Living is Easy (But Not THAT EASY)

for a week. The CFTC was the better opportunity, and I knew my employer in Chicago would understand, so I packed my bags for the capital!

My advice to anyone who is anxious about finding a job is to embrace the uncertainty and be systematic in applying.

It may take some time, but if you make a habit of applying to a new job every day, you will find something eventually.

Thomas Morrison Class of 2016

For the past two summers, I have worked for the Law Office of David Goldman in Jacksonville, Florida. Mr. Goldman specializes in estate planning, but is well known in the legal community for creating the gun trust. Gun trusts are simply an estate planning tool that allows people to pass guns to loved ones and avoid costly probate. In addition to gun trusts, Mr. Goldman is an expert at designing trusts, wills and other estate planning tools to achieve just about any goal of his clients.

I can’t think of a better place to work as a young law student because the attorneys there allowed me to do real legal work. I helped write motions, orders, letters of intent, and the actual complaints themselves. David allowed me to do some really interesting and important legal research. I also got to attend meetings with some of Jacksonville’s most influential people and got to work with many of the office’s clients directly. The attorneys in the office were all very patient with me and took the time to show me just how much work it takes for a firm to operate and how to make the business successful.

The two summers I spent in Jacksonville were two of the best of my life and I hope to practice there after I graduate. I had a great friend who gave me a place to stay, so I took a chance and moved down. I must have cold-called every lawyer in town looking for a job, and felt extremely lucky when Mr. Goldman’s office had an opening and offered it to me.

As a student, I can’t recommend working for a small firm enough. I truly feel blessed to have worked for attorneys with the patience and understanding to help a clueless 1L like I once was.

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BITCOIN may be the most famous thing in

the world that no one truly understands.

Dubbed the “internet of money,� Bitcoin has become a term known across the world, thanks to consistent media coverage, news stories and regulatory attention focusing on the digital currency. But most individuals are about as familiar with Bitcoin today as they were with the Internet in 1975.

For most people, Bitcoin and other digital currencies, at best, resemble a solution in need of a problem — a technological novelty

to get around big banks and big government that only interests hackers, criminals, and libertarians. But there is enormous potential in this evolving digital currency and the technology behind it.

As it gains in popularity, businesses and governments around the world are being forced to deal with the idea of Bitcoin as a serious concept. From taxation and currency matters, to regulatory questions and moneylaundering concerns, the legal arena is replete with issues related to Bitcoin and its technology.

By Ryan Jones

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BITCOIN BASICS Bitcoin is a form of virtual currency that first appeared in 2009. It exists solely in electronic form and is a purely decentralized, anonymous, peer-to-peer digital currency with no third party intermediary. This means Bitcoin is not regulated by any central government. Nor do transactions involving Bitcoin require the need for a bank, credit card company, escrow agent or recording agency.

This means that the value of a Bitcoin — currently

card transactions, and can only be refunded by

The protocol for Bitcoin is a method of communication in

the person receiving the funds.

which computers send, receive and manage the supply of those 21 million Bitcoins. This network comprises all of

To understand Bitcoins and how they are made

the computers using the Bitcoin protocol, while a Bitcoin

and owned, one needs to understand four critical

transaction is a file that specifies a destination, a source

elements of the Bitcoin world: the protocol,

and a specific amount of Bitcoin.

the blockchain, the transaction and finally, the digital signature or key. There is no physical

A participant in this network starts a transaction by

manifestation that someone can pick up and

authoring a transaction file and sending it to the Bitcoin

say, “Here is a Bitcoin.” Ownership of a Bitcoin is

network. Then, the transaction is verified in a process

ownership of a secret number or private key.

called “mining.”

$385.01 per Bitcoin — is based solely on trust, public perception and adoption rate.

“Market forces are more likely to step in to build trust in what is still a nascent, though growing, form of payment,” says Baker Donelson attorney William Norton, who specializes in business technology issues. In an interview with the Christian Science Monitor, Norton points to escrow or exchange-type services, such as

A Bitcoin is a piece of emerged to help buffer computer code (algorithms, consumers and businesses really) that represents alike against the risks of a form monetary units. of payment that many still regard

Though Bitcoins are “mined,” that term itself explains little.

Essentially, mining refers to how, in essence, Bitcoins are mined like gold and other precious metals, meaning in small quantities relative to the total supply, so that in turn, the total supply grows slowly.

According to Coindesk.com, mining is a reward-based incentive mechanism to maintain the validity and timeliness of the blockchain.

Coinbase, that have already

as experimental.

A Bitcoin is a piece of computer code (algorithms, really) that represents monetary units. The computer code written for Bitcoin ensures there will only be about 21 million Bitcoins generated through 2140, with just over 15 million Bitcoins in existence today. Similar to cash transactions, Bitcoin transactions are irreversible, unlike credit

11

A person who wants to own or use Bitcoins can choose to run a Bitcoin client on her own personal computer, or she can create an account on an independent website that runs a Bitcoin client for users of that site.

virtually impossible to hack. The computers running the

Bitcoins from one location to another, so Bitcoins may be

network are spread across the globe and there is no entity

redeemed and sent to a new address if and only if the

or monetary authority overseeing the mining process.

author of the transaction itself uses the private key in his

Unlike other trendy technology sector players such as

possession to initiate the transaction. The Bitcoin protocol

Uber, Lyft or AirBnB, Bitcoin is neither a company nor an

associates the ownership of a Bitcoin with a private key,

entity.

not with an individual’s name or any other identifying information. Therefore, the loss of a private key means

Bitcoin resembles email, in that it’s a person-to-person this case, funds) to be transferred efficiently.

A person who wants to own or use Bitcoins can choose to

Once each block of transactions over a 10 minute period is confirmed – meaning that a miner has verified that all transactions in the block are valid and the miner has proved to more than 50 percent of the rest of miners that his work was accurate — then that mined-block is added to the existing chain of previous transactions (hence “block-chain”).

Miners’ ledgers are automatically updated to reflect the latest additions to the chain, and the single miner who added the block receives a Bitcoin reward. The process of verifying transactions is essentially a computer race among miners where the winner receives Bitcoin.

The Bitcoin code is programmed to automatically release a set amount of Bitcoin to the quickest miner for every 10 minute period. This is how Bitcoin are released into circulation without the need for a monetary authority.

that all Bitcoins associated with that private key are lost.

internet-based technology that allows information (and in

SO WHY WOULD I USE BITCOIN?

run a Bitcoin client on her own personal computer, or she

“Bitcoin has a small core of believers, but the mainstream

can create an account on an independent website that

isn’t jumping into Bitcoin,” said Norton, in an E-Commerce

runs a Bitcoin client for users of that site. The Bitcoin client

Times article. “That’s why it will be a while, if ever, before

saves a user’s Bitcoins in a “digital wallet” that the user

Bitcoin becomes ubiquitous.”

must secure and back up. These clients and programs all connect to each other over the internet, forming peer-to-

Bitcoin usage hasn’t quite made its way to the everyday

peer networks.

consumer, but some retailers are taking the first steps, and it’s a perfectly suited form of currency for emerging

To own a quantity of Bitcoins, one has to author a

countries without central banks or other financial

transaction for that amount. The Bitcoin network will

intermediaries. It also has advantages for those dealing in

verify that amount, using a digital signature or key.

international exchanges, anonymous purchases and for

There are two types of keys. The first is the private key,

businesses dealing in the global economy.

which is a very large random number known only by the Bitcoin’s owner. The second is the public key, which

According to Coinbase, an online Bitcoin information

is derived from a complex mathematical function and

community network, there are some specific reasons

decrypts messages encoded with the associated private

people choose to use Bitcoins.

key. This public key is freely available to anyone, but both keys must be used to complete a transaction.

Bitcoin transactions are basically encrypted messages that instruct the Bitcoin network to move an allocation of

Since the Bitcoin network is public and open-access, every computer in the network has a copy of every Bitcoin transaction that has occurred. The database, known as Bitcoin’s public ledger, refreshes the record of Bitcoin transactions every 10 minutes.

The blockchain is seen by many as the most important aspect of Bitcoin. This groundbreaking decentralized public ledger is at Bitcoin’s technological core. The decentralization of Bitcoin and the blockchain make it

12

“Bitcoin has a small core of believers, but the mainstream isn’t jumping into Bitcoin.”

Peer-to-peer: When you send Bitcoins to someone

maximum number of Bitcoins in circulation, so there is

Somalia), Bitcoin offers a lot of value,” said Prof. Newman.

else, there is no required involvement from a payment

a scarcity factor that contributes to Bitcoin value, similar

“In places with trusted currencies, like the U.S. (home of

processor. This means the fee for each transaction is

to gold. Also, Bitcoins can be bought and sold through

the ‘almighty dollar’), Bitcoin’s value proposition is more

very small — from zero to negligible. Also, since there

peer-to-peer exchanges, which would continue to operate

dubious.”

is no central entity controlling the network, there is no

even if a financial or economic crisis disrupted traditional

need to trust or receive permission from any person or

banking and financial markets.

organization to participate in the Bitcoin network. For this reason, Bitcoin is global and resilient to problems that

and go-to for money transfers like this, but it can be very

have plagued traditional currencies.

VARIOUS USES AROUND THE GLOBE

Effortless online payments: In many cases, using Bitcoin

By now, it is probably clear that Bitcoin is not for the

is the easiest and quickest way to make a payment on

everyday citizen. It doesn’t have an easy-to-use app,

the Internet. When making a donation, or buying a digital

credit card backing, or physical presence. Also, the typical

item that doesn’t require shipping, Bitcoin doesn’t require

American has little need for Bitcoin, because of the wide

any personal information. The merchant doesn’t need

variety of convenient options for making payments and

any information, because they aren’t charging you (like

transferring funds, including traditional options such

a credit card), rather you are sending them the payment

as bank accounts and credit or debit cards and newer

(like cash).

options such as PayPal, Square, and even Facebook and Snapchat.

expensive and take unpredictably lengthy amounts of time for the transfers to go through. Bitcoin provides the ability to use the Internet as a fast and reliable means to transfer funds to another, rather than using a third-party like Western Union. Additionally, these digital currencies offer residents in developing nations the ability to spend and store money without needing a bank account or credit card, services that are often absent in the developing world. For example, a report from “Enhancing Financial Innovation and Access,” a nonprofit backed by the Bill and Melinda Gates Foundation, found that in 2014, just 36 percent of the local population in Nigeria

Reduced risk for merchants: Accepting traditional credit card payments is not only expensive for merchants, it also

The number of people in the U.S. who use Bitcoin as a

leaves them open to fraudulent payment reversals and

currency is still small. However, the number of online and

chargebacks. Since Bitcoin payments are not reversible,

international retailers and large businesses that accept

merchants can be sure that the payment will not be

Bitcoin is growing, and now includes Overstock.com,

cancelled fraudulently.

Zappos, Amazon, CVS, Tesla, Victoria’s Secret, Target, Expedia.com, Whole Foods, Kmart, Sears, Gap, Home

Complete control over your money: Bitcoin provides

For years, Western Union was the traditional stalwart

Depot, and many, many more.

the freedom to store and control your money without restrictions, penalties and fees commonly imposed by

“Like any other product, Bitcoin has to

banks. You are also able to make decisions about your

compete for users,” said John Newman,

finances that were previously the exclusive domain of

assistant professor of law at the University

financial institutions and governments.

of Memphis School of Law. “The only difference is that Bitcoin’s competitors

“Under traditional currency, governments are able to

aren’t consumer products like bread or

influence the economy through central banks altering the

cars. Instead, Bitcoin competes with other

currency supply,” says Memphis Law adjunct professor of

currencies like the dollar or euro.”

had access to any sort of traditional banking service.

“The legal controversy around Bitcoin seems to be driven largely by its relative anonymity — it provides a uniform means of exchange that can’t be easily tracked by government.”

cyberlaw and Butler Snow attorney, Jonathan Skrmetti.

“If significant economic activity moves over to Bitcoin,

It is beyond the U.S. borders that Bitcoin as a form of

There are several companies in Nigeria that are currently

governments are less able to tweak things through central

currency can (and is) having an important impact. For a

working to create an easy-to-use digital money transfer

banks. For a lot of people, that’s a positive feature.”

developing nation, Bitcoin and digital currencies provide

network that will span Nigeria and beyond. They are

a way to inexpensively move money across international

working with a company in Nigeria that provides software

Investors are also looking at Bitcoin as a new avenue

borders. “Where the traditional currency competitors

for small bank-like institutions across Nigeria to try to

for investment returns. There is a preset cap on the

aren’t very attractive (as in countries like Sudan or

provide a cheap way to send money to friends and family

Cont’d on pg 29

13

Regulate or Innovate?

By Toby Sells

14

movie? This very thing happened to about 112 million

“economic stimulus package.” In that package was about

patient records last year, or about 35 percent of the U.S.

$28 million for organizations in the healthcare industry to

population. This led leading national media outlets and

switch completely to computerized patient records.

healthcare trade journals alike to dub 2015 the “Year of the Healthcare Breach.”

The president’s order gave these organizations until 2015 to make the switch before the feds began imposing

If those stakes weren’t high enough, consider that much

financial penalties for noncompliance, in a mandate

of that data can be contained or protected in a doctor’s

called the Health Information Technology for Economic

office, clinic, or a hospital’s encrypted security system. But

and Clinical Health (HITECH) Act. Providers had to show

every day consumers are busy churning up tons of new

by then that they were making “meaningful use” of their

health data on their phones, on their wrist watches, their

electronic medical records.

shoes, their bathroom scales and more. The so-called

he healthcare industry is a tidal wave of information that’s fed daily by technology, pushing it bigger, faster and fuller ever onward (hopefully never meeting some far-away shore). In fact, it’s likely that no industry creates, collects, reviews and stores neither the amount nor the variety of data than the healthcare industry.

Even before a patient opens the door to the doctor’s office, they’ve shared a wealth of information. Contact information, maybe bank account information, certainly insurance information (which contains employer information) and even the patient’s medical history (which today could contain everything from the details of your birth to prescriptions you took that morning) is usually all recorded on a computer before they are ever asked to open up and say “Ah!” That data — medical, historical and financial — is some of the most personal and sensitive information in any industry anywhere. It’s a gold mine to doctors, researchers, healthcare administrators, government

“Internet of Things” has grown to include the “Internet of

In October 2015, the Centers for Medicare and Medicaid

Medical Things.”

Services (CMS) proposed revisions to those rules that gave the healthcare industry until January 2017 to comply

This, all of this, has kept attorneys busy in the healthcare

with the third and final stage of the paperless mandate.

world. They’ve helped hospitals find compliance to a

The new rules would offer new flexibility and would

raft of regulations that have flowed out of Washington

make way for an electronic medical system that moved

with a stunning regularity and velocity. And it will keep

beyond simple meaningful use, said Dr. Patrick Conway,

attorneys busy working in the space as they help

the CMS chief medical officer and deputy administrator for

healthcare organizations thread the needle between quick

innovation and quality.

information access for healthcare providers and privacy protections for patients.

member of the Senate Health, Education, Labor and “They said in a paperless world everything is going to

Pensions Committee, criticized the move at the time,

be great,” said Loretta Hinton (JD ’93), assistant general

saying the feds were still moving too fast.

counsel for Methodist Le Bonheur Healthcare. “But, really, things were a lot easier when everything was locked

“Instead of taking the time to get the stage three rule right,

down behind the doors in medical records and you

they’ve rushed ahead — when only 12 percent of doctors

had to go down there and show your driver’s license to

and less than 40 percent of hospitals can comply with the

get your records. The accessibility to electronic medical

program’s stage two,” Alexander said in a statement at the

records is great for healthcare providers, but we’re

time.

constantly having to educate and train people on how to access it and share it safely.”

a future of quicker, better medicine at a lower cost.

Setting the Stage for the Digital Future of Health Care

But hackers want that information, too. The street value

Think all the way back to 2004. President George W. Bush

for medical information (which can average $363 per

said that within 10 years, every American should have a

record) is a lot higher than just financial information

personal electronic medical record. Fast forward to 2009.

(about $1 per credit card number). So, these seemingly

The recession was in full swing but hadn’t bottomed out

faceless, seemingly nameless, black-hat bad guys won’t

yet. Some larger health systems had dipped a toe into

be giving up any time soon.

electronic medical records, but none had taken the full

officials, and, of course, patients, as they all work towards

But Tennessee Senator Lamar Alexander, a ranking

plunge. Paper records were still the standard.

They’ll target a clinic, hospital, or insurer, look for back doors (or create their own doors) into their servers,

In the midst of that, then-new President Barack Obama

and haul that high-priced digital loot away in virtual

launched the American Recovery and Reinvestment

getaway cars. Sound like an unrealistic plot from a heist

Act (ARRA), which would become informally called the

“

Instead of taking the time to get the stage three rule right, they’ve rushed ahead — when only 12 percent of doctors and less than 40 percent of hospitals can comply with the program’s stage two.”

15

Since 2009, most hospitals have gotten on the digital

“One of the rules of security is that usability, user-

director),” Hinton said. “We know the law, but then it gets

bus. Nearly 97 percent of them had a certified electric

friendliness, and security are usually on opposite ends,”

down to the gadgets and we’re like, ‘are we doing that?’

health record system and so did about 80 percent of

said Steve Crocker, Methodist’s director of information

They have to do a lot of interpreting for us because it

doctors’ offices, according to the latest figures from the

security. “You can’t go too far one way or too far another

really is very technical.”

Office of the National Coordinator for Health Information

way. You have to find that balance in using technologies.”

Methodist’s digital journey is not over. Fernandez said

Technology.

Case Study: Methodist’s Digital Journey Still a Balancing Act If you’ve seen a television medical drama recently, you know pens and clipboards have largely been replaced with cell phones and tablets. It’s a day-to-day reality at hospitals and clinics in the Methodist Le Bonheur Healthcare system, as physicians use their iPhones or iPads to check patient records or send text messages and videos to their colleagues for opinions on patients.

The speed and ease of the technology has many times led to better, quicker healthcare delivery. But getting there wasn’t quick, and staying fresh in the digital space isn’t easy. In fact, it’s a constant balancing act.

Gene Fernandez, Methodist’s chief technology officer, said the system has been on its digital journey for quite some time. It’s taken years of research and major investments by the company to install the technology and train the system’s staff to use it.

But the hard work is not done. Keeping that system safe for the millions of pieces of highly sensitive patient information requires constant vigilance, constant training, staying on the cutting edge of the industry, and striking a balance between security and the user experience.

Making the magic of technology work in a real

his team has to constantly test and audit the technology

environment and making it work safely is where

for failures or improvements. Hinton said her team has

Fernandez, the technology expert, Hinton, the hospital’s

to constantly educate and monitor vendors on HIPAA

assistant general counsel, and Crocker, the information

compliance. Crocker said his security team works

security expert, all have to work together, constantly

constantly to create a safer environment so technological

balancing patient privacy and access to information.

innovation can thrive in and across the Methodist system.

“It’s a constant battle between timeliness and availability,”

The Internet of (Medical) Things

said Hinton. “Doctors want the information now for patient care, which is our mission. But we have to leverage that with security and privacy. So, that’s a constant balancing act. We want to protect people’s privacy but at the same time, we’ve got to make sure information is readily available to medical staff and providers to enable them to provide good care.”

For Hinton, the balancing act means constant training on technology and data access for Methodist employees.

For Fernandez, it means ensuring medical providers have easy access to a hospital’s electronic medical record. For Crocker, that means ensuring texts are sent through an encrypted channel, using a third-party mobile app.

It’s likely that you know someone who wears a Fitbit, the small, digital watch that tracks motion and activity. (If you don’t, consider that the company sold nearly 5 million of them in third-quarter 2015.) That data is uploaded to servers housed and protected (in theory at least) by the company. That information is not currently regulated with the same scrutiny as patient medical information.

That worries Amy Campbell, director of the Institute for Health Law & Policy at the University of Memphis School of Law. She said more needs to be done to protect consumer privacy while not hampering innovation.

Information technology has risen so far to the top of priorities for the huge Memphis healthcare system that it recently commissioned a board-of-directors-level committee on information technology, a committee chaired by FedEx Corp.’s chief information security officer, Denise Wood.

That committee is focused on cybersecurity, monitoring the investments made in technology, and making sure all Methodist providers remain compliant with the Health Insurance Portability and Accountability Act (HIPAA), one of the largest legal protections for patient privacy.

HIPAA compliance and staying up-to-date on new regulations are the largest jobs for Hinton, whose job as assistant general counsel also makes her the compliance officer and the privacy officer.

“Those things are very technical, so we have to rely on Gene (the CTO) and Steve (the information security

16

Loretta Hinton (JD ‘93)

“We have to think about whether or not the existing

will also begin to target Apple products, like the wildly

privacy protections apply and have we figured out how

popular Apple Watch, once thought to be more secure

(to protect it) or do we need new protections,” Campbell

than other brands.

said. “By the same token…we need to be careful in regulating this sector so that we don’t overregulate

The National Science Foundation is chipping in $10

or regulate it in ways that have unintended, negative

million to help secure these devices in a project called

consequences of…restricting information that could be

Trustworthy Health and Wellness at Dartmouth College.

helpful to advance individual health or population level health.”

“Mobile medical applications offer tremendous opportunities to improve quality and access to care,

According to Bill O’Connor (JD ’12), a certified information

reduce costs and improve individual wellness and public

privacy professional, a member of Baker Donelson’s

health,” said David Kotz, the project’s leader. “However,

can’t easily change my Social Security number. I can’t

Privacy and Information Security Team and former

these new technologies, whether in the form of software

change my medical history.”

Memphis Law Review business editor, an additional issue

for smartphones or specialized devices to be worn,

that is unique to wearable technology and health care is

carried or applied as needed, may also pose risks if they

The cons crooks run with the information has a higher

product liability with regard to the reliability of advice or

are not designed or configured with security and privacy

payoff, too, like filing false medical claims. Also, when a

recommendations generated as a result of the wearable

in mind.”

crook runs your credit card, you or the company will likely

device.

This sector is certainly not limited to Fitbits, though.

Consumer products of all kinds are getting hooked

2015: The Year of the Healthcare Breach Health care has always been a technology industry. But

“

Mobile medical applications offer tremendous opportunities to improve quality and access to care, reduce costs and improve individual wellness and public health.”

digital technology has risen to the top of the healthcare agenda recently because it does offer a huge business opportunity and also because it provides a huge business risk. Again, it’s the promise of quicker, better and lesscostly health care balanced against the potential for the loss of patient privacy.

That risk was on full display last year. Before 2015 began, data breaches in the healthcare industry were numerous enough for some to call it a national epidemic. Even before the year ended, national media and trade journals alike dubbed 2015 “The Year of the Healthcare Breach.”

From January to October, almost 100 million protected health information records were compromised, according to IBM X-Force Interactive Security Incidents data. By year’s end, the figure had grown to 112 million records

up to the Internet. Light bulbs. Cameras. Refrigerators.

breached, which is roughly 35 percent of the nation’s

Thermostats. Collectively, these are all in an innovation

population.

group called the “Internet of Things.” Insulin pumps, patient beds and heart rate monitors are going digital, too,

Hackers want that information to sell on the black market.

in a subgroup known as the “Internet of Medical Things.”

The market rate for patient information is higher because the data is richer and offers a more-complete identity to

Information security experts with Symantec wrote in its

steal.

2016 forecast last year that regulations of this class of products “may be forced to catch up to technology in

“If you get my credit card, I’m going to change that

2016.” Symantec experts also predicted cybercriminals

number, but I can’t change who I am,” said Crocker. “I

notice it immediately. But the lag time on health identity theft is much longer.

“Depending on the type of wearable technology, the environment it’s used in, and how it’s connected to a network, wearable technology could also be a conduit for a hacker to gain access to sensitive information or protected health information that is not stored on the wearable device itself, but rather is stored on a system accessible from a network that the wearable device is connected to or has access to,” said Baker Donelson’s O’Connor. “Likewise, it could be used as a conduit to gain unauthorized access to a system or other IT infrastructure, potentially leading to system shutdowns or configuration changes that could endanger patient safety.”

The average, out-of-pocket loss to a victim of medical identify theft is about $18,660, according to a 2015 study by the Poneman Institute, an information security research agency. Those victims further face ruined credit, lost insurance coverage, confusion in medical records, higher premiums and even bad diagnoses if a doctor uses phony medical information.

For healthcare providers, the cost of a breach is steep.

Each breach can cost a hospital or clinic or doctor’s office up to $50,000 for each HIPAA violation or up to $1.5 million in a year.

But it should be noted that not all patient records are lost to hackers. In fact, a 2014 report from information security firm Bitglass said that only 23 percent of health

Cont’d on pg 30

17

1

TRUE BLUE INTERVIEW

What are some qualities or decisions of former Memphis mayors or city leaders that you’ve learned from and taken to heart?

I have learned much from former leaders of Memphis: Then State Senator (now Congressman) Steve Cohen — tenacity (it took 17 years to pass the Tennessee lottery); Mayor Willie Herenton — the need for decisiveness; Mayor Dick Hackett — the emphasis on customer service; Congressman Harold Ford Sr. — the emphasis on constituent service; school board member Maxine Smith — steadfastness; Mayor Jim Rout — prioritizing time with family.

2

Mayor Jim Strickland (JD ‘89) Jim Strickland (JD ’89) was elected Mayor of the City of Memphis on October 8, 2015. Before that, the city knew him as an active and prominent city councilman, successful local attorney, proud University of Memphis alumnus, and a driving force for change in the City of Memphis. He began his mayoral tenure with a promise to shake up Memphis city government, to crack down on crime and blight and heed the call for change from the citizens of Memphis. And he’s quickly assembled

The University of Memphis has been a big part of your life. Can you explain how you view its significance to the city itself? Specifically, how is the law school important to the success of Memphis?

The University of Memphis is one of the two most important entities in the City of Memphis (FedEx is the other one). The University produces thousands of highquality graduates each year that enter our workforce and contribute so much to our community. It also anchors a great neighborhood, the University District, which also happens to be my neighborhood. It provides research and other contributions to government, private businesses, and the nonprofit community that are vital to the city’s

a dream-team leadership staff to make sure things get done.

success.

Mayor Strickland invited ML into his office at City Hall to talk about the past, present and future

The law school is a great example of the University’s

of Memphis and the evolving legal landscape of the city.

18

contributions to Memphis. Most lawyers practicing law in Memphis graduated from the law school. As a graduate

myself, I am proud that so many of our grads have risen to the top of their fields at law firms and businesses throughout the country and government positions, including the United States House of Representatives.

3 As a longtime practicing attorney here, what issues did you come across that you are now in a position as mayor to help change and what can you do about them?

Like many other lawyers practicing in Memphis, in

“The one thing that remains true over my years of practice is that Memphis is a great place to practice law.”

my practice I came across many of the challenges of Memphis such as unemployment, blight, and crime,

In addition, downtown is no longer the sole office location

amenities — but our city is not growing in population or

including domestic violence. This exposure gives me

for Memphis law firms. Hundreds of lawyers have moved

jobs. Our administration will focus on growing Memphis.

valuable insight in my new position. We must clean this

out east or to other locations throughout the city. Online

We need to be “brilliant at the basics” in city hall —

city up — reduce the crime, blight and litter — and make it

filings with our courts have made it easier for lawyers, but

reducing crime, cleaning up the blight and litter, paving

more attractive for current businesses to stay and expand,

we are losing the interactions and resulting relationships

streets, responding to 911 calls, etc. If city government

and to recruit new companies to come to town and create

with court clerk staff. Most insurance companies have

can better provide the basic core services of government,

jobs for our citizens. We are pushing for stiffer penalties

brought defense counsel in-house hurting some

combined with the great things going on in the city,

for violent criminals, including those guilty of domestic

traditional defense firms, and changes in workers’

Memphis will explode with growth. I am optimistic about

violence, to deter violence. We need to expand programs

compensation and medical malpractice laws have greatly

the future of our city, and we will work hard every day to

that intervene in the lives of young people, giving them

impacted lawyers and clients.

create a better Memphis.

constructive things to do when they are not in school. We must be “brilliant at the basics” in the city government to

The one thing that remains true over my years of practice

better deliver core services to our citizens.

is that Memphis is a great place to practice law.

4

5

How has the legal profession changed since you graduated from Memphis Law?

How will your administration make its mark on the city and continue the substantial momentum that Memphis is experiencing at the moment?

In the almost 27 years I have practiced law, I have seen many changes. Legal research has dramatically changed.

Books and firm libraries have almost disappeared. Online research has greatly improved; Google-type searches have replaced connectors, such as “within 5 words of.”

6 What is your advice for someone that wants to make a difference in Memphis?

Everyone in Memphis can make a difference. Our city is large enough to offer many big-city amenities, but manageable enough to offer volunteer opportunities that can make big differences. There are numerous

There are so many great things going on in Memphis —

organizations actively seeking volunteers, from cleaning

continued improvement downtown, dramatic growth in

up litter to helping young people.

midtown, great parks in Shelby Farms Park and Overton Park, college and professional sports, and wonderful 19

Courtroom Sketch Artists An Art From Another Era

By Ryan Jones Artwork by Jeanne Seagle and Bobby Spillman 20

T

he work of courtroom artists was thrown into the

sketch artists and sought to use their work once again

national spotlight last August with the sketch of NFL

for the purpose of illustrating courtroom proceedings for

quarterback Tom Brady during his “Deflategate” trial,

their news coverage. In the mid-1980s however, the first

generating controversy and attention across the Internet

cameras and a small number of camcorders began to be

and in media outlets throughout the country. The

allowed in courtrooms without restrictions. This was only

courtroom sketch artist in this trial, Jane Rosenberg, drew

the case in some state courts, however, with photography

the ire of the viewing public when her sketches were

and video still being banned in federal criminal courts

widely mocked and panned as hideously off-the-mark.

since 1946. The United States Supreme Court stands by the federal ban. “There’s a concern [among justices]

That may have been the first time in quite a while that

about the impact of television on the functioning of the

so many people have paid attention to what is widely

institution,” Chief Justice John Roberts said in 2006.

considered a dying art in the legal arena.

“We’re going to be very careful before we do anything that might have an adverse impact.” Justice Stephen

For years, courtroom sketch artists were traditionally the

Breyer has also referred to fears that the attention on

general public’s eyes at high-profile trials. It’s an echo

televised trials could frighten witnesses and encourage

from an era when drawings in newspapers, TV news

lawyers to perform for the audience.

broadcasts, school books and travel publications were how people caught a glimpse of the world beyond

Memphis has had its share of prominent trials over the

their own. However, the ranks of courtroom artists

years, with local artists chronicling the proceedings for our

have thinned as technology has evolved and states

local media along the way. It may be a fading art form not

have steadily lifted longstanding bans on cameras in

much noticed by people reading and watching the news,

courtrooms.

but something significant may still end up being lost, as videos and photos, no matter how well-done, cannot

As courts across the country banned photography in

replicate the magic and beauty of compressing hours

the early 1950s, news outlets rediscovered courtroom

upon hours of courtroom action into one single drawing that captures the essence of the day’s events.

21

ALUMNI: SETTING THE BAR

1968 1970 1971

Judge Richard P. McCully has been elected as international chief tribune of Phi Alpha Delta Law Fraternity, International.

James L. Kirby, of Harris Shelton Hanover Walsh, PLLC, was named as the Construction Law “Lawyer of the Year� in Memphis in the Best Lawyers in America (2016 edition) and was also named a 2015 Mid-South Super Lawyer.

John Houseal was just named 2016 Lawyer of the Year in Health Care Law by Best Lawyers in America. Mr. Houseal was also named to the Mid-South Super Lawyers list in the areas of Health Care, Insurance Coverage, and Construction Litigation.

Edward McKenney, Jr., of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Best Lawyers in America (2016 Edition).

David C. Porteous was selected for inclusion in The Best Lawyers in America (2016 edition) for Real Estate law.

M. Anderson Cobb, Jr., of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Best Lawyers in America (2016 Edition).

1972 1973

B. Douglas Earthman has been elected to the American College of Bond Counsel. Mr. Earthman was also named to the Mid-South Super Lawyers list in the areas of Bonds/ Government Finance and Real Estate.

David C. Scruggs was selected for inclusion in The Best Lawyers in America (2016 edition) in the area of administrative/regulatory law.

Donald R. Tracy was appointed by Illinois Governor Bruce Rauner as Chairman of the Illinois Gaming Board.

1976 Charles W. Hill was named to the Mid-South Super Lawyers list in the areas of Employment & Labor, Securities Litigation, and Business Litigation.

1977 1979 1980

W. Kerby Bowling was selected for inclusion in The Best Lawyers in America (2016 edition) in the fields of Administrative/Regulatory Law.

Randall Womack has been named to the Mid-South Super Lawyers list in the area of Environmental Law. Frank N. Stockdale Carney was selected for inclusion in The Best Lawyers in America (2016 edition) in the area of employee benefits.

Steven Douglas, of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Best Lawyers in America (2016 edition).

John M. Higgason, Jr. passed away in early 2016. He was a longtime member of the Chattanooga and Hamilton County legal community.

Donald J. Valdez was recently elected secretary for the Little Rock, Arkansas, Chapter of the Society of Former Special Agents of the FBI. Valdez previously retired as vice president and senior counsel for the Recording Industry Association of America, Inc. and subsequently as of counsel to the Fort Worth, Texas, law firm of Decker Jones.

22

Pauline Weaver has been elected as chair-elect of the ABA Government and Public Lawyers Division.

Kay Spalding Robilio was elected as Memphis City Court Clerk.

James D. Wilson, of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Best Lawyers in America (2016 edition) and was also named a 2015 Mid-South Super Lawyer.

1974 1975

R. Hunter Humphreys was named to the list of Mid-South Super Lawyers in the areas of Real Estate, Business/Corporate.

Charles C. Drennon, III, of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Best Lawyers in America (2016 edition).

1981

Jeff Weintraub, regional managing partner of Fisher & Phillips LLP, was selected for inclusion in The Best Lawyers in America (2016 edition) in the area of Labor & Employment Litigation.

Rice Byars, Jr., of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Mid-South Super Lawyers (2016 edition).

1982 1984

1995

Russell “Rusty” J. Hensley was selected for inclusion in The Best Lawyers in America (2016 edition) in the fields of Corporate Law and Mergers/Acquisitions.

Joseph T. Getz was selected for inclusion in The Best Lawyers in America (2016 edition) in the fields of Construction Law and Construction Litigation. He was also named a Mid-South Super Lawyer and was selected to serve as a member of Mayor Jim Strickland’s transition team.

The Hon. Roger Page was appointed by Gov. Bill Haslam to the Tennessee Supreme Court. Page has been a judge on the Tennessee Court of Criminal Appeals since his appointment by Haslam in December 2011. He previously was a circuit court judge for the 26th Judicial District — Chester, Henderson and Madison counties.

Barbara Lapides, of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Best Lawyers in America (2016 edition).

1996 1997 1998

1987 1992 1993

David Kustoff was selected as vice chairman of the Tennessee Higher Education Commission.

Steve Maroney was recently appointed attorney for the City of Bolivar, Tennessee. He also serves as the county attorney and delinquent tax attorney for Madison County, Tennessee, and as attorney for the City of Three Way, Tennessee.

Denise Burke was named to the 2016 class of Nashville Health Care Council Fellows.

Caren Beth Nichol was named as a 2015 Mid-South Super Lawyer in the field of Family Law and ranked in the 2015 Super Lawyers’ Top 50 Women Lawyers in the Mid-South. She was selected by her peers for inclusion in The Best Lawyers in America 2016 in the field of Commercial Litigation.

Charles W. “Chip” Cavagnaro, Jr. was selected for inclusion in The Best Lawyers in America (2016 edition) in the area of Labor and Employment Litigation.

Kevin Snider has been selected for inclusion in the 2015 edition of Super Lawyers, The National Trial Lawyers: Top 100 Trial Lawyers, and the American Society of Legal Advocates as one of the Top 100 Litigation Attorneys in Tennessee for his work in Consumer Law and Consumer Protection Matters.

Scott Delius was reappointed by the Governor of Georgia to serve on the Georgia Judicial Nominating Commission. The commission recommends candidates for appointment to fill open state, superior and appellate court judgeships in Georgia.

Ronald T. Catelli is currently serving as president of the Monmouth County Bar Association, in Monmouth County, New Jersey.

Allison T. Gilbert, of Harris Shelton Hanover Walsh, PLLC, was selected for inclusion in the Best Lawyers in America (2016 edition).

1985 Elizabeth Stengel was selected for inclusion in The Best Lawyers in America (2016 edition) in the area of Construction Litigation.

Michael P. Pfrommer of Pfrommer and Castle Law Firm, has been selected as a 2015 Mid-South Super Lawyer.

Jason D. Salomon, a member of the law firm of Harkavy Shainberg Kaplan & Dunstan PLC, has become a Fellow of the Memphis Bar Foundation.

2000 2001 2003

Matthew J. Kirby, of Harris Shelton Hanover Walsh, PLLC, was named a 2015 Rising Star by Mid-South Super Lawyer.

Frances M. Riley was appointed as the chief administrative officer/senior chief deputy clerk for the City of Memphis.

Kyle Cannon was selected to the 2015 Super Lawyers MidSouth Rising Stars list. This is Mr. Cannon’s fourth time receiving this honor.

Don L. Hearn was named to the Mid-South Super Lawyers list in the areas of Business Litigation, Employee Benefits/ERISA and Construction Litigation.

23

ALUMNI: SETTING THE BAR Kannon Conway, of Harris Shelton Hanover Walsh, PLLC, was named a 2015 Rising Star by Mid-South Super Lawyer.

George “Harley” Steffens, IV, was named a Rising Star in the field of Real Estate in Mid-South Super Lawyers magazine.

L. Clayton Culpepper was named a Rising Star by Mid-South Super Lawyer magazine in the field of Business Litigation. He was also selected for inclusion in The Best Lawyers in America (2016 edition).

Abigail J. Webb, became a member of Harris Shelton Hanover Walsh, PLLC, in January 2016, and also was named a 2015 Rising Star by Mid-South Super Lawyer.

Elizabeth A. Gentzler graduated from the U.S. Army’s Judge Advocate General’s Legal Center and School, in February, 2016. She previously completed officer training at Fort Benning in the fall of 2015, and was commissioned as a First Lieutenant in the U.S. Army Reserves JAG Corps. She will be participating in Military Operational Law events being held at Fort Dix, New Jersey, this spring.

2004 2005

Kyle Wiggins was named senior director and operations counsel for Kindred Rehabilitation Services, a division of Kindred Healthcare, in Louisville, Kentucky.

Oscar Carr began his practice with the Experiential Healing Center, where he works with attorneys that struggle with work/ life balance, burnout and depression.

Katy Laster was named a shareholder of Evans Petree PC.

Christian Blackburn joined the Nashville office of the law firm Leitner, Williams, Dooley & Napolitan, PLLC.

Andre Mathis was named a 2015 Rising Star by Mid-South Super Lawyer.

Lindsey C. Cadle has been appointed as the newest assistant district attorney in the Campbell County Office.

William Chad Roberts became a member of Harris Shelton Hanover Walsh, PLLC, in January 2016.

Thomas R. Greer was recently elected as a member of the American Board of Trial Advocates, which is an invitation-only organization devoted to fostering improvement in the ethical and technical standards of practice in the field of advocacy.

Thomas was also selected as a 2015 Mid-South Super Lawyer.

Betsy Weintraub moved to Saipan to work as assistant attorney general for the Office of the Attorney General of the Commonwealth of the Northern Mariana Islands.

Lewis Lyons was, for the fourth consecutive year, named a Mid-South Super Lawyers Rising Star in the area of General Civil Litigation. In December, Lewis presented at two continuing education seminars, speaking on damages in personal injury cases for the National Business Institute and on ethics in personal injury cases for the Memphis Bar Association.

Dennis G. Sadler joined the Memphis office of the law firm Leitner, Williams, Dooley & Napolitan, PLLC.

Tricia M.Y. Tweel became a member at the law firm of Harris Shelton Hanover Walsh, PLLC, in January 2016.

Brian L. Yoakum was named a Rising Star by Mid-South Super Lawyers magazine and was also selected to serve as a member of Mayor Jim Strickland’s transition team.

24

2007

Laura S. Martin became a member of Harris Shelton Hanover Walsh, PLLC, in January and also was named a 2015 Rising Star by Mid-South Super Lawyer.

Justin K. Thomas was selected to the 2015 Super Lawyer Mid-South Rising Stars list.

2006

William J. Wyatt became a member of Harris Shelton Hanover Walsh, PLLC, in January 2016, and was also named a 2015 Rising Star by Mid-South Super Lawyer.

Megan E. Arthur joined Evans Petree PC as a shareholder.

She was also named a Rising Star by Mid-South Super Lawyers magazine for the third year in a row. She was nominated and elected as a barrister member of the Leo Bearman, Sr. American Inn of Court; nominated and elected to serve as a member of the board of directors for the Memphis Bar Association.

2008 2009 2010

Patrick E. Swanson was recently named to serve as acting Chautauqua County district attorney in New York State.

Lisa J. Gill has been elected as the 2016 President of the Association of Women Attorneys – Memphis Chapter.

Anne B. Davis has been elected as the 2016 President of the Memphis Bar Association Family Law Section and has been selected as a 2016 Rising Star by Super Lawyers.

Shea B. Oliver, from Burch, Porter & Johnson, PLLC, was selected for inclusion on the 2015 Mid-South Rising Stars list.

Sarah Turner is a new associate in the Memphis office of Leitner, Williams, Dooley & Napolitan, PLLC.

2011

Gregory Allen has been named as a Top 10 Criminal Defense Attorney Under 40 in Tennessee by the National Academy of Criminal Defense Attorneys.

2012

Bill O’Connor of Baker Donelson has earned a Certified Information Systems Security Professional (CISSP) certification from the International Information System Security Certification Consortium, Inc. (ISC)²®.

2013

Ryan Dalton is now a foreign service special agent for the Bureau of Diplomatic Security at the United States Department of State.

Rebecca K. Hinds has joined the Litigation Section of Martin, Tate, Morrow & Marston, P.C. William Terrell has been selected to study internationally this year through the Pegasus Scholarship Trust by the American Inns of Court. Terrell will spend six weeks in London studying the English legal system.

2014

Mitchell “Blake” Watson received the DUI Prosecutor of the Year Award for the State of Tennessee from the Tennessee District Attorney’s General Conference.

If you have an alumni news item or update that you would like to see featured in this section of ML, please send it to ML executive editor Ryan Jones at rjones1@memphis.edu, along with any corresponding headshots.

25

IN THESE HALLS: FACULTY ACCOMPLISHMENTS Alena Allen

D.R. Jones

Professor Allen’s article, “Dense Women,” was published in the

Professor Jones’ article, “Commerciality and Fair Use,” was

Ohio State Law Journal.

published in the Wake Forest Journal of Business & Intellectual Property.

Jeremy Bock

Daniel Kiel

Professor Bock’s article, “Does the Presumption of Validity Matter?

Professor Kiel’s article, “No Caste Here? Toward a Structural

An Experimental Assessment,” was published in the University of

Explanation of American Education Disparities,” was published

Richmond Law Review.

in the Penn State Law Review.

Ralph Brashier

William Kratzke

Professor Brashier’s textbook, “Mastering Elder Law,” had a

Professor Kratzke’s article, “The Biblical Fool and the Brander:

second edition published.

the Law and Economics of Propertization in American Trademark Law,” was accepted for publication in the Cardozo Arts & Entertainment Law Journal.

Amy Campbell Professor Campbell authored a chapter entitled “Is there a

Peter Letsou

therapeutic way to balance community sentiment, student mental

Dean Letsou’s op-ed, “Too Many Law Students, Too Few

health, and student safety to address campus-related violence?”

Legal Jobs? A View from Memphis Law,” was published in

in the “Handbook of Community Sentiment”.

The Commercial Appeal on September 6, 2015. Dean Letsou also participated as a panelist in “Journey to Justice, The Role of Law in Effecting Social Change, as Examined through the Legacy of Constance Baker Motley, Advocate and Jurist” at

Demetria Frank

the National Civil Rights Museum on November 12, 2015.

Professor Frank’s article, “The Proof is in the Prejudice: A Proposal

Earlier in the fall, Dean Letsou was elected secretary of the Leo

Confronting Implicit Racial Bias in Uncharged Act Evidence,” will

Bearman Sr. American Inn of Court.

be published in the Harvard Journal on Racial & Ethnic Justice.

Boris Mamlyuk Professor Mamlyuk’s book chapter, “Post-socialist property Donna Harkness

law in Russia,” is forthcoming in the “Research Handbook on

Professor Harkness authored a chapter entitled “Bridging

Comparative Property Law.”

the Caregiving Gap – Does Technology Provide and Ethically

He also has another forthcoming chapter entitled,

and Legally Viable Answer? A U.S. Perspective,” in the book “International and Comparative Law on the Rights of Older Persons.”

Lee Harris Professor Harris’ textbook, “Mastering Corporations and Other Business Entities,” had its second edition published.

26

“Decolonization as a Cold War Imperative: Early Soviet International Law as a Precursor to Bandung,” in “The Global South, and International Law: Critical Pasts and Pending Futures.”

Professor Mamyluk’s article, “The Ukraine Crisis, Cold War II, and International Law,” was published in the German Law Journal.

Andrew McClurg

PROFESSOR EUGENE SHAPIRO RETIREMENT

Professor McClurg’s textbook, “Guns and the Law: Cases, Problems and Explanation,” will be published in 2016.

Professor McClurg’s article, “The Second Amendment Right to be Negligent,” was accepted for publication in the Florida Law Review.

He also had his article, “In Search of the Golden Mean in the Gun Debate,” published in the Howard Law Journal.

Steven Mulroy Professor Mulroy had an adapted version of his Case Western Reserve Law Review article, “Fourth Amendment Whack-a-Mole: The Surprising Persistence of the Constitutionally Problematic 48Hour Holds,” published online by Case Text.

John Newman Professor Newman’s article, “Antitrust in Zero-Price Markets: Foundations,” was published in the University of Pennsylvania Law Review.

Daniel Schaffzin Professor Schaffzin’s book chapter, “Delivering Effective Education in Externship Programs,” was published in the textbook “Building on Best Practices and Carnegie’s Educating Lawyers: Legal Education in a Changing World.”

Katharine Schaffzin Professor Schaffzin’s article, “Beyond Bobby Jo Clary: The

Professor Eugene Shapiro, who has been a faculty member at Memphis Law for 40 years, will retire at the end of the current academic year.

Unavailability of Same-Sex Marital Privileges Infringes the Rights

Professor Shapiro has been an outstanding teacher to thousands

of So Many More than Criminal Defendants,” was accepted for

of students, as well as an exemplary scholar. He joined the

publication in the University of Kansas Law Review.

faculty at the Cecil C. Humphreys School of Law in 1976, after serving as associate appellate counsel for the Legal Aid Society in New York City and as an attorney for the National Labor Relations

Eugene Shapiro

Board.

Professor Shapiro’s article, “Governmental Acquiescence in Private Party Searches: The State Action Inquiry and Lessons from the

On behalf of the entire Memphis Law community, we’d like to

Federal Circuit,” will be published in the University of Kentucky

express our deepest gratitude to Professor Shapiro for all he has

Law Journal.

done for this law school and for our students.

Christina Zawissa Professor Zawissa’s article, “Teaching Cross-Cultural Competence

THANK YOU PROFESSOR SHAPIRO!

to Law Students: Understanding the ‘Self’ as ‘Other’,” will be published in the Florida Coastal Law Review.

27

WHAT IS THE REAL

CO$T OF FREE?

By Professor John Newman

example, contended shortly before he passed away that search engines cannot be liable under antitrust laws because they are “free to consumers.” Joshua Wright, a former commissioner at the Federal Trade Commission, has similarly argued that most online businesses “give away their products for free.”

But this whole idea of for-profit businesses giving consumers products for “free” ought to seem a little odd.

When it comes to the marketplace, as Milton Friedman famously quipped, “There is no free lunch.” The Internet did not destroy firms’ profit motive. It also did not

Professor Newman’s paper, “Anti-trust in Zero-

eliminate the cost of making products — try recreating the “Street View” feature of Google Maps without any funding

Price Markets: Foundations,” was recently published in the

for fleets of cars, cameras and drivers. Companies like

University of Pennsylvania Law Review. In the short article

Google, innovative though they may be, are not in the

that follows, he touches on some of his points and ideas

business of giving away their products for free.

in that article to help the reader understand that “free” online products are not really and truly “free,” and how

Consumers pay for these “free” products not with

that could potentially harm our society and marketplace.

several weeks later, they disclosed almost twice that

money, but with their attention and personal information.

number.

Each time you log in to Facebook or check Gmail, you We are living in the future. Ours is a world where vast

pay with your time (that fraction of a second your eye

libraries of information and content are available at

We need a wake-up call. The basic structure of modern

spends darting over to the weight-loss ad on the side

the click of a button or tap of a screen — and all of it is

“free” markets is no different than that of traditional

of the screen) or information (the fact that you are

(seemingly) free. Google, Pandora, Hulu, Twitter, and

markets. In both, sellers transfer products to buyers in

thinking about buying a new sofa, or suffer from seasonal

Instagram: all free. For years, Facebook’s login page has

exchange for something of value. Antitrust laws are meant

allergies). These are exchanges, even if consumers — and

reassured users: “It’s free, and always will be.”

to safeguard marketplace competition, but doing so

some areas of the law, antitrust in particular — often fail to

effectively requires protecting all markets, not just those

recognize them as such.

with obvious prices.

Why this failure? Two reasons.

Broadcast radio provides a telling example of the harm

Just a few decades ago, most of these products did not even exist. A few, like recorded music, did — but only a billionaire could have afforded a library the size of

that can result when antitrust turns a blind eye. In 1996,

Pandora’s. Today, anyone with an Internet connection can

First, modern economics tends to focus heavily on prices.

access virtually unlimited amounts of music, film, books

Congress passed the Telecommunications Act, which

That dependence may explain how even experts like Bork

and news articles, all without paying a single cent.

removed a longstanding limit on how many stations

and Wright could forget the no-free-lunch rule when it

a single entity can own. A massive wave of industry

comes to products that lack obvious prices.

consolidation followed. Antitrust enforcement agencies

Like most of us, I readily adopted many of these new

closely analyzed whether these mergers would result

technologies. Free on-demand TV? Sign me up, no

Second, consumers tend to drastically underestimate

questions asked. And, for a while, I felt like I was getting

in higher prices to advertisers. But what the agencies

how effective advertising is at diverting our attention. One

the world’s greatest bargain, as if these products entailed

neglected to look for was potential harm to listeners. If

study showed that a majority of Internet users believe

all benefits and no costs. I was in good company — the

a station owner becomes the only game in town, it can

online ads are “almost completely ineffective”. This belief

most well-known exploration of the “free” phenomenon,

raise attention costs in the form of more advertisements.

is incorrect. Follow-on experiments showed that ads had

Chris Anderson’s “Free: The Future of a Radical Price,”

Unsurprisingly, in many regions, listeners have ended up

substantial power both to persuade and distract users.

also takes this position. Anderson argues that the Internet

paying more in exchange for a lower-quality product.

It seems we delude ourselves into believing that we are

made distribution so cheap that it might as well be free,

immune to ads, which causes us to discount any potential

which is how all these wonderful products can flow to

Recognizing that many “free” products are not actually

attention costs. And even though consumers say they

consumers free of charge.

free is a much-needed first step. Going forward, society

strongly oppose giving out their personal information,

needs to take a closer look at these markets. We have

actual behavior reveals a much different picture. In In more scholarly circles, the same attitude prevailed.

come to enjoy — and, in some cases, even depend on —

another study, individuals stated they were willing to give

Prominent judge and antitrust scholar Robert Bork, for

the benefits of zero prices. But we also need to account

up, on average, 8.7 items of personal information — yet,

for their costs.

28

Cont’d from pg 13

in the form of digital currency. This network will connect a number of microfinance institutions that provide bank-like services, such as loans, to people who don’t have bank access. It will allow Bitcoin and digital currencies to move between those institutions and give people a way to easily send and receive money.

HOW IS IT REGULATED? “The legal controversy around Bitcoin seems to be driven largely by its relative anonymity – it provides a uniform

The states themselves have begun to regulate emerging digital currencies as well, with a variety of new regulatory frameworks, licenses and legislation.

means of exchange that can’t be easily tracked by government,” according to Skrmetti. “The uniformity lets Bitcoin function as a currency, but a currency that doesn’t move through the channels that criminal investigators and tax agencies can readily access. Both the inherent difficulty of tying cryptocurrency transactions to real people and the government’s inexperience in the field

happening. But if the government is just generally

make Bitcoin attractive for criminals, though of course it

trying to prevent people from using Bitcoin, they’ll have

also has plenty of legitimate uses.”

no way of reliably knowing whether the parties to a given

The states themselves have begun to regulate emerging

Bitcoin transaction are in their country.”

digital currencies as well, with a variety of new regulatory

targeted Bitcoin, in the United States and globally. In 2014,

Making matters more difficult, the main federal agencies

the U.S. Internal Revenue Service proclaimed that Bitcoins

monitoring digital currencies (the SEC, CFTC, FinCEN and

New York

could themselves be taxed. The U.S. Securities and

IRS) all have their own interpretations of virtual currencies

Exchange Commission, the body that oversees the sale of

and how or whether they should be regulated. The IRS

stocks, bonds and other securities, warned the public that

defines a virtual currency as being “treated as property

Bitcoin users may be targeted for fraud in risky investment

for U.S. federal tax purposes. General tax principles that

schemes.

apply to property transactions apply to transactions using

It should then come as no surprise that regulators have

virtual currency.” FinCEN looks at Bitcoin and virtual

frameworks, licenses and legislation.

In May of 2015, New York State’s Department of Financial Services granted its first official business license for a Bitcoin exchange, itBit. This allows that exchange to legally attract customers from across the country, but at the same time makes itBit the first fully regulated digital

“Laws will only be effective if they can be enforced,”

currencies as similar to traditional currency, subjecting

currency exchange in the United States.

according to cyberlaw expert Skrmetti. “Direct regulation

exchangers of digital currency to the same regulations as

of Bitcoin transactions will be tough because various

money services businesses. The CFTC recently ruled that

New Jersey

proxy technologies allow users to effectively anonymize

“Bitcoin and other virtual currencies are properly defined

their web use. If the government is already surveilling the

as commodities.” And finally, the SEC has decided to treat

Bitcoin user, they might be able to see the transaction

Bitcoin-based products as securities.

New York’s neighbor is following a similar track and giving Bitcoin a regulatory framework. Not only is New Jersey attempting to regulate digital currencies though, it is also attempting to offer tax breaks for companies that exchange Bitcoins, a measure that could encourage many more businesses to accept the digital currency.

North Carolina Already known as a banking hub, North Carolina appears to be positioning itself as a leader for cryptocurrency regulation. But not everyone will be regulated.

29

“

Many Bitcoin exchanges involve people either sending or receiving goods or converting Bitcoins to traditional currency.”

in European nations. According to Money.com, “Governments are concerned about taxation and their lack of control over the currency.”

China has a partial ban on the digital currency, and Thailand and Vietnam do not recognize Bitcoin as an acceptable form of currency. India has also reportedly looked into banning Bitcoin, but hasn’t moved toward doing so. Bitcoin is also currently banned in Bangladesh, Bolivia, Ecuador, Iceland and Kyrgyzstan.

However, Russian authorities recently announced they were lifting the country’s ban on Bitcoin, for now.

According to CoinDesk, select Bitcoin and blockchainrelated businesses are entitled to exempt status. Joining them are businesses who take part in nonfinancial blockchain services, so those likely integrating blockchain technology merely for record-keeping practices or anything similar will be able to escape the state’s hand.

The North Carolina Office of the Commissioner of Banks and the Chamber of Digital Commerce based in Washington, D.C. have been working together to allow for such exemptions, in an attempt to avoid problems witnessed in New York and other regulation-heavy states.

North Carolina also does not require digital currency businesses to obtain special licenses to operate, unlike other states.

Other states The international Bitcoin exchange that joined the U.S. market in April, announced that it was unable to work with businesses or consumers in the following states because they required additional money transmitter licenses for Bitcoin companies. These states include: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Guam, Idaho, Iowa, Kansas, Louisiana, Maryland, Michigan, Mississippi, Nebraska, New Hampshire, North Dakota, Ohio, Oregon, Tennessee, Texas, Vermont, Virginia and Washington. However, it seems likely that more states will adopt Bitcoin legislation in order to provide regulatory authority and also to create more clarity for Bitcoin business in those states.

Internationally Globally, the European Commission is expected to release its own regulations by 2017 to regulate Bitcoins 30

Cont’d from pg 17

According to Skrmetti, Bitcoin becomes vulnerable to

Telemedicine, or telehealth, is the basic term used for a patient seeing a doctor remotely via phone or videoconference.

government intervention at the nexus of Bitcoin and the real world. “Many Bitcoin exchanges involve people either sending or receiving goods or converting Bitcoins to traditional currency,” says Skrmetti. “A sufficiently nosy government can take a look at those real-world activities and potentially tie them to particular bitcoins, though you’d expect the real criminals will develop methods to make investigators’ lives difficult. Clamping down on Bitcoin use at the real-world level would not altogether eliminate Bitcoin, since it could still be used for purely online transactions or by people capable of laundering it. But tight restrictions would make it a lot harder for most people to use Bitcoin in most of the circumstances they’d want to use it, which would in

information was stolen by hackers that year. Loss or theft of, say, a laptop or a mobile phone made up more about 68 percent of information breach cases.

In 2011, Massachusetts General settled a $1 million suit with the U.S. Department of Health & Human Services (HHS) after a hospital employee accidentally left a work folder containing 192 medical records on the subway. In

turn drive down its value.”

2014, the Indiana Court of Appeals ordered a $1.4 million

THE FUTURE OF BITCOIN

pharmacist shared the private patient information of a

Despite persistent rumors of its demise as a virtual

husband.

currency, Bitcoin is not likely to die any time soon.

Venture capital firms had invested over $1 billion in Bitcoin-related startups by the end of 2015, according to Bloomberg. These investors are betting that Bitcoin adoption will continue to grow with better infrastructure.

“Even in areas where the currency itself is trustworthy, people may still distrust the financial system surrounding it,” said Professor Newman. “In Memphis, over 90,000 households remain unbanked. Bitcoin could find its niche among this population, but only if and when it advances enough that anyone with a smartphone can use Bitcoin to pay for groceries at Kroger, wire funds to a relative, or withdraw money at an ATM.”

HIPAA verdict upheld against Walgreen Co. after a store Walgreens customer who once dated the pharmacist’s

Lawsuits can be even more costly. A class action suit was brought against the U.S. Department of Defense’s TRICARE health insurance program in 2011. A contractor lost backup computer tapes from an electronic health record, which contained information on about 4.9 million individuals.

The lawsuit sought $4.9 billion from the Defense Department. But U.S. District Judge James Boasberg dismissed most of the majority of the suit in 2014 as most of the patient records were not used to defraud the patients.

It further defined patient privacy rights at the time as Boasberg said that most courts have already “agreed that the mere loss of data — without evidence that (the information) has been either viewed or misused — does not constitute an injury sufficient to confer standing.”

Data breaches got so bad in 2015 that the HHS jumped in, publishing its list of data breaches that affected more than 500 patient records at a time. The list quickly became known in the healthcare industry at HHS’s “wall of shame.” That list includes 1,462 breaches from network hacks, lost paper records, phishing scams or lost mobile devices.

FDA Regulation and Cybersecurity

In 2014, Tennessee legislators passed a bill requiring

Last July, the U.S. Food and Drug Administration issued

like they would traditional in-office visits. Tennessee

a cybersecurity alert to healthcare facilities using certain infusion pumps made by a company known as Hospira.

In an article for Law360, Bill O’Connor (JD ’12) explains that certain security vulnerabilities in the Hospira system could allow unauthorized access to the device. He explains that the Hospira system communicates with a healthcare facility’s network and information systems to control dosage delivery and according to the FDA alert, an unauthorized user could potentially gain access to the device remotely and alter dosage amounts. This

But the federal government is working toward a fix for the problem. In mid-December, President Obama signed a $1.1 trillion spending bill that included a final version of the Cybersecurity Information Sharing Act. For health care, the bill mandated a report from HHS on it and the healthcare industry’s preparedness for cybersecurity attacks. The bill also mandated the formation of a healthcare cybersecurity task force to analyze the problem.

marks the first time that the FDA has recommended discontinuing use of a specific medical device, based on cybersecurity issues, according to O’Connor.

This first-time alert from the FDA shows how seriously the organization considers cybersecurity and addresses the vulnerabilities of digital healthcare technology. Healthcare facilities and providers should also take the FDA’s warning seriously because a medical device cyberattack that results in harm to a patient would almost certainly cause

In the meantime, information security group Symantec predicted cybersecurity will be an even bigger and broader problem for the healthcare industry this year.

commercial insurers to cover telemedicine services just became the 21st state to require this when the mandate began in October 2015.

The legislation was sponsored in the Tennessee Senate

by Sen. Mike Bell, who said a telemedicine clinic was opened in an elementary school in his district that was home to lower-income students. He told a Senate committee that the clinic had been a “godsend.”

Still Frist said new laws should create medical parity between remote and on-site visits. A bill to that effect is now before the Tennessee General Assembly. Also, state legislators will review rules to strengthen protections for telemedicine providers and eliminate a requirement that a telemedicine provider be physically in a hospital or some other qualified setting to get insurance reimbursement.

Some (Somewhat) Bright Spots on the Horizon

reputational harm and have adverse legal and financial

Healthcare technology is certainly not all doom and

consequences.

gloom (even though stormy weather does worry some who watch health tech’s ever-growing horizon).

“Medical device manufacturers should take the FDA’s warning seriously,” said O’Connor. “They should safeguard

In the future, patients will probably see more doctors

against cybersecurity vulnerabilities in future products by

on a computer screen (especially in Tennessee). They’ll

carefully considering possible cybersecurity risks while

have access to more gadgets than ever to tell them if

designing products and having a plan to manage system

they’re getting enough exercise, enough insulin or enough

or software updates for those products.”

sleep. And law and new regulations (especially on privacy

Telemedicine a “Godsend” in Tennessee

and patient confidentiality) will closely follow the light of health care’s new day.

Telemedicine, or telehealth, is the basic term used for a patient seeing a doctor remotely via phone or videoconference. Its use has exploded across the country, especially in rural and remote locations.

Bill O’Connor (JD ‘12)

Dr. Bill Frist, a former two-term Senator representing Tennessee, wrote in a Tennessean op-ed last year that while the practice is in its “infancy” here, it can save lives, and lots of money as patients use it — not the emergency room — as their primary portal to health care.

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STRATEGIC PLAN INITIATIVE ONE:

INITIATIVE TWO:

INITIATIVE THREE:

COMMUNITY ENGAGEMENT

ACADEMIC PROGRAMS AND CURRICULUM

EXPERIENTIAL KNOWLEDGE AND PROFESSIONAL SKILLS

• Number of full-time, first-year legal writing program faculty members

• Comparison of ABA experiential learning standards to the experiential learning requirements put in place by Memphis Law

• Number of externship and employment opportunities for students • Number of collaborative programs with University of Memphis departments and schools • Number of programs and events hosted at the law school by the legal and governmental communities • Number of Memphis-related institutes and programs • Establishment of Masters of Laws and Certificate programs • Establishment of additional institutes and programs

• Number of new writingorientated courses for second and third-year law students • Number of new course offerings focusing on the business and operation of a law practice • Successful creation of career portfolios for students

• Number of available spaces in clinics and externships • Level of expansion in experiential learning curriculum • Number of simulation and professional skills courses

• Amount of increased integration of experiential and practice-oriented activities in traditional courses

INITIATIVE FOUR:

INITIATIVE FIVE:

INITIATIVE SIX:

FACULTY RECRUITMENT, RETENTION AND DEVELOPMENT

STUDENT RECRUITMENT AND SUCCESS

INFRASTRUCTURE AND ADMINISTRATIVE RESOURCES

• Number of published scholarly articles in both print and digital media

• Level of student body diversity

• Level of investment in website and technology

• Number of public engagement activities by faculty members • Comparison of faculty diversity statistics with past law school levels as well as with peer institutions • Number of faculty honorifics and chairs • Number of media citations in academic outlets of national reputation • Level of funding for faculty travel • Number of conferences hosted and visits by scholars from other academic institutions 32

HOW WE WILL MEASURE OUR SUCCESS

• Number of new scholarships and level of funding for existing scholarships • Number of students in mentoring programs • Level of increase in academic profile of entering classes • Level of employment for graduates

• Level of investment in print and digital marketing materials • Level of alumni involvement in the activities of the law school • Percentage of alumni participation in the annual fund • Level of donor support

“As an independent wealth management company, Argent Trust is committed to delivering in-depth, personalized and unbiased service. We are also committed to giving back to Memphis. Please join us as we invest in the future of our city by supporting the University of Memphis Law School.”

Ed Brundick, (BBA ’98; MBA ’99; JD ’03) Memphis Market President

Contact Holly Hazlett at 901.678.4726 to see how you can give back to Memphis Law.

PRESORTED

Non-Profit Org

U.S. POSTAGE PAID MEMPHIS, TN

PERMIT NO. 207

1 North Front Street Memphis, TN 38103-2189

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