Showing papers in "Washington Law Review in 2016"

Pluralizing the 'Sharing' Economy

Abstract: INTRODUCTION"The more things change, the more they stay the same."Much tumult surrounds the rise of what commentators commonly refer to as "collaborative consumption," the "sharing economy," the "on-demand economy," the "gig economy,"2 the "access economy,"3 or the "peer-to-peer (P2P) economy"-an economic activity in which web platforms facilitate peer-to-peer exchanges of diverse types of goods and services.4People agree on little about this economic model-everything from its name to its claimed virtues-is a cause for fierce controversy.5 In fact, people have greeted the rise of the P2P economy with sharply polarized responses. opponents file lawsuits concerning labor law violations6 or zoning regulations,7 confront P2P firms companies with huge demonstrations across the globe,8 and strongly urge lawmakers for direct regulation.9 Proponents tout the model as innovative, choice-enhancing, and transformative of consumerist models, and exhort lawmakers to let it flourish with minimal or no regulation.10What everyone does agree on is that this model has a powerful; economic effect on various industries and employment structures;11 and that it is here to stay.12 For example, Uber, the P2P transportation company, is only seven years old and already valued at $41 billion- while disrupting the traditional model of taxi cabs by eschewing corporate ownership of cars or medallions (alienable licenses, worth tens of thousands of dollars, to operate taxis in regulated cities).13 The company now operates in fifty-seven countries on five continents.14 Other companies have joined the market as well (e.g., Lyft and Hitch), a trend recently dubbed "Uberification" or "Uberization."15 In the hospitality arena, Airbnb, a company that facilities short-term rentals, is valued at $13 billion16 and arranged 155 million stays last year-22% more than Hilton Worldwide Holdings, Inc.17 Similar companies in various sectors of industry also flourish, and many businesses now structure their services so that they will fall under the complimentary halo of the "sharing" economy.18Lawmakers' responses to the rapid growth of the model have been slow, confused, and scattered.19 Their approaches vary from nonintervention, to creating new regulatory regimes,20 to sporadically cracking down on some of these services,21 to complete bans.22Scholarly responses to the phenomenon have been similarly deficient. The burgeoning scholarly literature-coming from such different fields as law, business, sociology, and economics-has insisted on a sectorial approach to regulation. That is, scholars have asserted that the best way to evaluate the model and to craft appropriate policy is in silos: examining each market, or each regulatory aspect, alone.23 For example, because the short-term rentals market is markedly different from the transportation market, these scholars contend that the only way to craft pertinent regulation is through separate inspection of the two markets and recommendations for regulations relevant to each market respectively.24 Proposals such as keeping the tax aspect separate from employment issues and zoning laws exemplify the common prerogative of addressing each legal aspect of the P2P economy individually.25 Thus, a comprehensive theory-rather than fragmented policymaking proposals-is what is missing from the growing literature.Further, most scholars mistakenly embrace the narrative of sharing (that is, the idea that altruistic or communal interests define the market), or they overstate the innovation of the P2P economy as transforming models of consumption-from owning to borrowing.26 Some literature has failed to look critically at what is really at stake in terms of economic activity and innovation. Finally, some commentators advocate dichotomist approaches to regulations, either calling for self-regulation or imposing traditional regulation on the P2P economy. 27Meanwhile, in the world of legal theory-a terrain that seems far away from the debate about the P2P economy-a concept that i label "autonomy-based pluralism" (I use the term "pluralistic theory" interchangeably) has gained immense traction. …

Buyers in the Baby Market: Toward a Transparent Consumerism

Abstract: INTRODUCTIONHealth care today, taken as a whole, is often characterized by the increasing consolidation of health care providers, opaque payment systems in which neither doctors nor patients understand the full price of medical procedures, and increasing distance between doctors and patients.Yet, certain segments of the health care industry such as cosmetic surgery, many dental and mental health services, and most of assisted reproduction, have until recently defied the trends. They did so in large part because insurance and government subsidies cover a much smaller portion of these procedures. Instead, these services have usually occurred in the context of relatively small or solo practices, or university centers where patients pay for the services they receive with much less (if any) subsidization or third party involvement, and deal directly with individual professionals in the process. As a result, market forces influence supply and demand much more directly than in other parts of the health care industry, and the health care provider-patient relationship is a more commercially driven seller-buyer one.These forces-particularly the absence of wide scale insurance or government subsidization-have shaped assisted reproduction technologies (ART) from their inception. Almost every aspect of ART has been controversial, from the initial use of artificial insemination with donor sperm (AID), to use of fertility drugs that increase the frequency of multiple births, to in vitro fertilization (IVF), which permits conception outside of the human body. The Catholic Church, for instance, identifies human dignity with conception by a married couple within a woman's body, and it therefore opposes IVF-and government subsidization of IVF-altogether.1 Others have expressed concern about the health effects of fertility drugs, the hormones used in IVF, the increased incidence of multiples, and other ART practices.2 The combination of religious objections to the procedures, and concern that government inquiries would result in restrictive measures, have blocked inclusion of ART in national health legislation and funding for research that would contribute to better understandings of the long term health risks involved with these procedures.3 Instead, relatively little regulatory oversight exists and only a small number of states mandate any form of insurance coverage.4For most of its existence, therefore, ART practices have taken place in the context of a different consumer and ethical infrastructure than other health care services. This means that even where fertility clinics experience many of the same forces as the rest of the medical profession, the implications may not be the same. For example, ART practitioners, like other medical clinics, face pressures to innovate. This innovation increases returns to scale and take place in the context of global competition. In the fertility context, consolidation, at least initially, may offer more rather than less price competition and competition across jurisdictional lines offers not just opportunities to leverage price differences but to jurisdiction shop for different regulatory environments. Competition for providers across state and national lines may therefore give consumers a wider array of choices.At the same time, the competition for fertility services involves selection for particular services as much as, if not more, than selection for price. The global market for fertility services includes wealthy and sophisticated patients who may scour the world for a place willing to provide surrogacy services for older or non-traditional couples. It also includes those who would like to employ new techniques to select a child of a desired sex, to avoid the transmission of hereditary diseases, or to conceive a "savior sibling" capable of providing a bone marrow transplant to a family member whose life depends on finding a compatible donor.5 Increased competition and "fertility tourism" may thus expand the availability of services not just by making them more affordable, but also by making it easier to evade ethical restrictions that limit the availability of controversial services. …

State Equity Crowdfunding and Investor Protection

Abstract: INTRODUCTIONOn March 5, 2015, the nation's capital completed its first equity crowdfunding campaign.1 The offering, set up through the online crowdfunding platform EquityEats,2 sought to raise $200,000 in thirty days for a new restaurant in the District's Penn Quarter neighborhood.3 In return for investing between $100 and $10,000, the 339 D.C. residents who participated were promised a ten percent interest in the company, a portion of the restaurant's cash flow, and other perks like priority reservations and an opportunity to discuss the business with management.4Small-dollar equity investments, or equity crowdfunding, provide a new means through which small business owners can raise the capital needed to start and expand their businesses.5 Although a small subset of the most promising companies can access any number of different sources of financing, from venture capital firms6 to angel investors,7 most have to rely on other sources like traditional bank loans or an owner's personal savings.8 Slowly, those traditional constraints have loosened as different means of financing become available. Equity crowdfunding is one of these means, made available to small businesses by states and, more recently, the federal government to facilitate investment in small businesses.Until recently, small businesses had been all but prohibited from raising money through small-dollar equity investments. The goals of the Securities and Exchange Commission (SEC or the Commission)-to protect investors, maintain efficient markets, and facilitate capital formation9-are inherently at odds. That conflict has disproportionately burdened small businesses.10 Because securities regulators chose disclosure as the primary method of investor protection, the resulting fixed costs are substantial and cost prohibitive for many businesses interested in accessing the public securities markets.11 During the summer of 2011, the regulation landscape began to change when Kansas passed the first equity crowdfunding law.12 That law was intended to match local businesses with investors who "wanted to make a profit, but [who] also wanted to support the business in their town."13 That single state exemption was followed shortly by the passage of the Jumpstart Our Business Startups Act (JOBS Act),14 which President Obama signed into law in April of 2012.15 Title III of the JOBS Act was intended to "open[] up exciting new opportunities for small businesses and startups . . . to raise capital from investors online"16 by allowing businesses to raise up to $1 million from the general public17 through online fundraising portals.18 Unfortunately, the JOBS Act's effectiveness was predicated on the SEC promulgating rules within 270 days.19 The SEC proposed rules in early 201420 and on October 30, 2015 finally adopted rules to permit crowdfunding nationally.21 With federal action pending for over three years, states began to take the initiative. The lone Kansas exemption ballooned to over twenty-five proposed and enacted statutes.22Although the availability of alternative forms of investing and capital-raising is a positive development, these alternatives pose risks if improperly regulated. In a 2013 report on the potential benefits of crowdfunding around the world, the World Bank emphasized that, while "[s]uccessful fraud with crowdfunding has been relatively rare,"23 it is nonetheless "a legitimate concern." Indeed, concerns for investor protection were a hot topic during the federal legislation process24-a topic eventually decided in favor of additional investor protection in tandem with including stricter requirements on small businesses.25 By contrast, many state statutes and regulations have been deliberately drafted in ways that seek to create less stringent restrictions than the federal model.26Legal action at the state and federal levels has legitimized concerns about fraud. First, in 2014, the Washington State Attorney General brought a lawsuit against Altius Management and its president, Ed Nash. …

Consume or invest: What do/should agency leaders maximize?

Abstract: INTRODUCTION"[P]art of public service is planting trees under whose shade you'll never sit . . . ."1In the management cliche hall of fame, the all-time winner is pick the "low hanging fruit."2 Of course, obtaining high-value results with a minimum of effort is excellent advice, at least as a starting point. But, as a general principle, the message is extremely short sighted. Unless leaders plant trees, there will be neither shade nor fruit for future generations to enjoy.The conflict between picking and planting-between consuming and investing-is a policy perennial. Good leaders know that any success they may achieve depends on the investment decisions made by their predecessors. In like fashion, good leaders also know that many of the benefits of any investment they make will be captured by their successors.Agency leaders are not angels.3 They are human beings, who desire personal recognition and advancement. Investment in institutional capability and capacity does not result in newspaper headlines, popular acclaim, or the offer of a high-paying private sector job. Instead, it is the announcement of a "big" case or rulemaking that casts agency leadership in a positive light.If there is no turnover in agency leadership this dynamic would not create a major problem: "[w]hen agency leadership does not change, the leaders capture the benefits (and bear[] the costs) of the outcomes in the cases that they initiate."4 But agency leadership is never indefinite. Indeed, in most of the administrative state, political appointees come and go quite frequently.5 A timely departure makes it possible for agency leaders to "'outrun their mistakes,' so that when blame-time arrives, the burden will fall on someone else."6 In practice, this means that agency leaders have a significant incentive to launch big cases or rulemaking without being overly concerned about the agency's capability and capacity to deliver the goods.7 Stated more concretely, agency leaders will predictably and systematically slight investment and prioritize consumption. I.B.G.-Y.B.G. ("I'll be gone, you'll be gone") does not apply only to Wall Street.8Building on our previous work,9 we show the importance of balancing consumption against investment. We focus on the policy mismatches that arise when short-term political appointees lead governmental agencies with long-term policy needs-but our analysis also applies to private and nonprofit firms. We also discuss measures that can serve to counteract inadequate attention to investment. The Federal Trade Commission's (FTC) health care program illustrates the importance and benefits of sustained investments in capability.Part I describes how investments in agency capability provide the necessary foundation on which an agency builds successful cases, rules, and other policy initiatives. Part II examines the structural and political incentives that encourage agency leadership to systematically privilege consumption over investment. Part III provides a case study of the FTC's health care portfolio, where investments in policy research and development (RD it must decide whether the behavior is sufficiently problematic to justify intervention; and it must then choose among the various alternative solutions. …

Reputation through Litigation: How the Legal System Shapes Behavior by Producing Information

Abstract: INTRODUCTION"Reputation matters" is becoming the new mantra in the legal literature Legal scholars increasingly refer to reputational concerns as important forces that shape our behavior across a wide range of phenomena: from product safety to corporate governance and the recent financial crisis to state compliance with international obligations1 Mounting empirical evidence shows just how real reputational sanctions can be: news about corporate misbehavior often brings with it declines in stock prices, in consumer willingness to pay, and in employee motivation2 Yet so far the literature has stayed remarkably silent on how reputation matters, or how reputation interacts with the law3This Article narrows the gap in our understanding of reputation by exploring the basic question of why similar behaviors lead to different reputational outcomes The conventional approach assumes that whenever misconduct is revealed, the misbehaving company/businessman will suffer reputational damages But everyday experience and systematic empirical evidence demonstrate that not all bad news is created equal4 Some companies and businessmen emerge from failures unscathed while others go bankrupt What explains the variation? Why does the market react negatively to some bad news but not to others?A large part of the answer, this Article argues, is dictated by the legal system When news breaks about some adverse action by a company, the company's stakeholders update their beliefs about the company and assess whether they want to continue doing business with it But the process of belief-updating-the process of reputational sanctioning- does not operate in a vacuum The same bad news that ignites an initial market reaction may also get the legal system involved-through litigation or regulatory investigations Then, in the process of determining whether to impose legal sanctions, the legal system produces as a byproduct information on the behavior of the parties to the dispute: what top managers knew about the problem, when they knew it, whether they could have stopped it, and so forth This information is available to outside observers and affects the way that these third parties treat the parties to the dispute In other words, the legal system provides better information to the public on which to base reputational judgments Contrary to the common assumption,5 law and reputation are not independent of each other, but rather complement each other The legal system's reaction to misbehavior affects the market reactionRecognizing the reputation-shaping role of the law carries important policy implications Most basically, this Article calls for a more cautious approach to advocating for nonintervention According to the conventional approach, when we recognize an area with strong reputational forces, we can scale back on legal intervention6 For example, Polinsky and Shavell propose abolishing product liability for widely sold products7 Their logic is that if non-legal forces are strong enough to carry most of the burden of deterrence, then it is not cost-effective to keep a costly adjudication system simply for the sake of an incremental contribution to deterrence8 At the heart of such an argument lies an implicit assumption that the legal system and the non-legal system are independent of each other Polinsky and Shavell assume that we can remove the law-remove the background threat of litigation- and the market forces will continue to function just the same But in reality the strength of market forces is a function of the existing legal system If we remove the background threat of litigation, perhaps the costs of reputational sanctions will riseA few words on methodology and scope are in order from the outset Scholars have largely neglected the question of how reputation matters not because they find reputational incentives to be unimportant, but rather because scholars find them to be messy9 Reputational forces follow fuzzy dynamics and are hard to capture in neat models …

The Right to Be Virtually Clothed

Abstract: INTRODUCTIONAmanda Todd was a fifteen-year-old girl from British Columbia.1 An anonymous stranger convinced her to reveal her breasts on her webcam.2 A year later, the stranger created a Facebook page with the picture.3 Amanda was harassed, bullied, and tormented, both at school and online.4 Amanda expressed her devastation in a YouTube video, stating, "I can never get that photo back. It's out there forever . . . ."5 A few months after she made the video, Amanda took her own life.6 The permanence of such photos is a foundational aspect of nonconsensual pornography's invidious nature-once content is created, there is no practical way, legal or otherwise, for victims to conceal or remove images.7 This can change.Nonconsensual pornography-also known as "revenge porn"-is a form of online harassment that causes irreparable reputational and career damage.8 Revenge porn is the nonconsensual distribution of sexually explicit photographs or videos online. Often the perpetrator will post an image along with a fake advertisement for sex and the subject's individually identifiable information such as their home and work addresses, social media profiles, and social security numbers.9 Additionally, some perpetrators will intentionally prioritize the order that a search engine displays nonconsensual pornography results when someone searches for the subject's name.10 As a result, revenge porn can cause severe emotional harm, ruin careers, and place survivors11 in physical danger.12This Comment will propose three legislative measures that would mitigate harms associated with revenge porn. Part I describes how the internet promotes and extends access to content, which facilitates revenge porn and intensifies its damage.13 Part II analyzes historical and contemporary approaches to privacy law in the United States and gives a brief overview of current legal approaches to revenge porn. Part III advocates for recognition of a "right to be virtually clothed," stemming from the "right to be forgotten" and the "right to delete" as recognized internationally. Specific to the revenge porn context, the "right to be virtually clothed" includes the right to remove nonconsensual images from search engine results, and the right to delete nonconsensual images once consent has been withdrawn-from both a website hosting the images and from the individual who possesses the images. Finally, Part IV describes the potential legal challenges these proposals might face and ways to overcome these barriers.I. REVENGE PORN DESTROYS CAREERS, REPUTATIONS, RELATIONSHIPS, AND CAUSES PSYCHOLOGICAL HARMOften, the first response to revenge porn is a form of victim blaming14: "don't take nude photos or videos."15 The logic goes, if you do not take pictures or videos of yourself or allow others to take them, then you will not have a problem. This ostensibly simple solution ignores the gendered nature of the problem,16 the reality that these images are being taken-and will continue to be17-and the severity of the effect of the non-consensual publication of nude images online. What happens online affects our lives offline. People who post revenge porn online destroy survivors' offline reputations, job opportunities, and relationships, and cause psychological harm.18 These harms are intensified due to cultural norms and because the internet is easy to use and globally accessible.19One prominent aspect that fuels revenge porn's harms is its cultural and gendered context. It is often men who instigate the initial act of recording and women who suffer the consequences.20 Danielle Citron, who has extensively studied revenge porn, illustrates that revenge porn is powerful because society gives it power: "[h]arassers know that women will be seen as sluts . . . [and] post women's nude images because they know it will make them unemployable, undateable, and at risk for sexual assault."21 Although revenge is certainly a reason that people post revenge porn, it is not the only reason. …

[91WashLRev0147] A Flexible Health Care Workforce Requires a Flexible Regulatory Environment: Promoting Health Care Competition Through Regulatory Reform

Abstract: INTRODUCTIONThe American health care system is in the midst of a major transformation. The structure of the industry is in flux as payment methods evolve and innovative care delivery systems emerge, leading not only to new relationships among payers, providers, and patients, but also to novel business models.1 All of these factors-combined with ongoing changes in provider education, certification, and licensure- have complicated the answer to a central question in the health care marketplace: which health care professionals can safely, effectively, and efficiently provide for each component of the broad range of patients' health care needs?This Article examines one key component of the U.S. health care system: competition between health care service providers, especially health care professionals. Varied and regulated professionals deliver an ever-widening range of health care services to patients, in many different settings and at every level of care. While each profession is in certain respects discrete, the scope of practice of each category of caregiver is likely to overlap with that of another, especially when professionals are permitted to practice to the full extent of their education, certification, training, and experience. As a result of this overlap, different types of providers may become-or be perceived as-competitors for the safe and effective delivery of some health care services. General practice physicians can encroach on specialists, advanced practice registered nurses can encroach on physicians, or professionals licensed in one state can remotely provide services to patients located elsewhere, intruding upon the practices of local professionals.2 The ability to flexibly deploy different types of practitioners to perform some of the same services, and the competition this flexibility may engender, can make a valuable contribution to the system's ability to achieve lower costs, expanded access, and increased quality of care.3 It may also be one reason why friction between various types of caregivers has persisted for a long time and appears to be on the rise.4Most health care service providers practice under varied, longstanding, and pervasive regulatory regimes, primarily created at the state level.5 Some of these regimes have roots in the origins of the modern American medical system. They have developed over decades and tend to reflect the educational systems, training regimens, expectations, and mores of their times.6 Reflecting those times, these regulations may entrench specific business and care delivery models, creating what might be characterized as "regulatory barriers by design" for some new types of providers.7 This may be especially true for those who seek to provide the same services as incumbent providers do through innovative practice or business models that do not readily fit within established regulations. Further complicating the competitive landscape, these regulations often are administered by self-interested, nominally state boards constituted either of the very professionals to be regulated or their competitors. And those professionals may interpret existing laws and regulations in ways that limit new sources of competition, and may have both the means and incentive to extend these protections through even more restrictive regulations.8Existing regulations and regulatory systems, therefore, may not be consonant with the expectations, capabilities, and needs of the changing health care environment. To the contrary, these laws and regulations, and the traditional way in which they have been administered, together can erect hurdles in the path of competition and innovation. Instead of being conducive to change, they can impede it in whole or in part, are susceptible to manipulation, and invite efforts to impose new restrictions to slow or arrest the development of new, expanded, and non-traditional models of providing health care services. Some health care providers thus have faced significant challenges when they seek to utilize their full knowledge, training, and skills to provide safe and effective care. …

Surveillance Policy Making By Procurement

Abstract: INTRODUCTIONOne day some of us showed up [to] committee and there were some objects on [the] table. It turns out they were drones. We didn't even know we owned drones. We looked at each other [and asked], where did these come from? And then someone said, oh, you approved it two years ago.1-Seattle City Council Member Nick LicataThe heavily militarized response to those protesting the police shooting of Michael Brown in Ferguson, Missouri generated real shock among members of the public, who did not realize that the federal government provided military-grade weapons and equipment to local law enforcement agencies. In the aftermath, the White House conducted a top-to-bottom review of federal support for local law enforcement equipment acquisition.2 It concluded that "training has not been institutionalized, specifically with respect to civil rights and civil liberties protections[.]"3 It also found that "[l]ocal elected officials are frequently not involved in the decision-making" about what technology their police forces acquire, and the general public is "unaware of what their [law enforcement agencies] possess."4These statements are equally true of federal programs promoting the acquisition of surveillance equipment. The primary difference is that while the public does eventually witness the use of force, surveillance, by its nature, remains largely invisible. Yet surveillance equipment is also susceptible to abuse. The federal government's role in promoting its use merits close attention. This Article begins that work.Federal agencies make considerable funds available to local law enforcement agencies, in the form of grants, to acquire surveillance technologies. Congress substantially increased the amount of funding available in response to the 9/11 terrorist attacks, reflecting the view that local cooperation was essential to prevent future incidents of terrorism. 5 its interest in enhancing the capabilities of local law enforcement agencies is likely to increase because anti-terrorism experts are convinced that Orlando and San Bernardino-style "home-grown" terrorist incidents are now a substantial threat to our security and safety.6By influencing the process of procurement, the federal government can entice local police departments-over which it has no formal control-to enhance their surveillance capabilities in line with federal priorities. But this approach, which this Article refers to as surveillance policy making by procurement, has a variety of additional consequences. For the most part, local law enforcement agencies are directed and controlled by locally elected government officials, who are in turn subject to the pressures of local public opinion. Surveillance policy making by procurement can short-circuit this process when elected officials and the public are left without a meaningful understanding of what technologies their law enforcement agency is acquiring. This can create a governance void, in which law enforcement agencies deploy powerful surveillance technologies in ways that may conflict with local political preferences. Moreover, because the same surveillance technologies that are useful in investigating terrorism are also useful in investigating more routine forms of criminal conduct, federal programs created with the War on Terror in mind can have significant effects on standard law enforcement work.To better understand surveillance policy making by procurement, this Article develops three case studies: Seattle's acquisition of a drone and deployment of a "mesh network"; Oakland's construction of a "domain awareness center"; and San Diego's rollout of facial recognition technology. The technologies that Seattle, Oakland, and San Diego acquired are not marginal improvements on existing tools.7 All substantially increase the capacity of a law enforcement agency to collect, store, analyze, and share information about individuals, with a potentially significant, negative impact on privacy. …

Revisiting the Taxation of Fringe Benefits

Abstract: INTRODUCTIONOver a quarter of a century ago, through targeted legislative reforms, Congress sought to end the practice of not reporting on-the-job fringe benefits as taxable income.1 The congressional fixes are found in several different Internal Revenue Code (Code) sections2: Code section 61(a)(1) added the phrase "fringe benefits" to its description of gross income,3 Code section 132 excluded from gross income certain specifically defined fringe benefits,4 and employment tax provisions (i.e., Code sections 3121(a), 3306(b), 3401(a), and 3501(b)) expanded the application of payroll taxes to include taxable fringe benefits.5 The legislative history underlying these reform measures indicates that Congress designed these Code sections to clarify the law, limit tax base erosion, and curtail the practice of employers transforming taxable remuneration into tax-free fringe benefits.6But a surprising situation has recently occurred. The country is awash in fringe benefits inuring to employees,7 a sizable portion of which currently goes unreported as taxable income.8 These newly minted fringe benefits generally fall within one of three categories: (1) "customer loyalty programs" such as frequent-flier miles, rental car usage, hotel frequency stays, and office supply purchases; (2) mixed-use (business/personal) assets such as cellular phones and home internet service; and (3) workplace lifestyle enhancements such as the receipt of free lunches, massages, and dance classes. None of these benefits existed in their present form until the turn of the century, and many are provided by unrelated third-party vendors rather than the employers themselves. The evolution of this new era of fringe benefits can be traced to technological advancements and the increasing globalization of the workforce over the past several decades.9Because the aforementioned fringe benefits are not statutorily excluded from gross income under Code section 132, they are presumably includable in gross income under Code section 61.10 However, these new fringe benefits often go unreported, with no clear statutory or regulatory justification.11 There are numerous possible reasons why these fringe benefits are rarely reported as taxable income. Their valuation is inherently problematic; their putative "tax-free status" has tremendous political support; recordkeeping for these benefits is administratively challenging; and, over the past quarter of a century, payroll taxes have dramatically risen, making noncompliance more economically attractive.12 Further, the nonreporting of certain benefits like employer-provided cellphones has received the blessing of the Internal Revenue Service (IRS),13 while non-enforcement with respect to other types of benefits (e.g., frequent flyer miles) suggests the IRS's tacit approval.As more employers and employees take advantage of these unreported fringe benefits, Congress must ponder its options. Possible approaches include expanding the list of those fringe benefits excluded from gross income, explicitly stating that some or all of the aforementioned fringe benefits are taxable, and/or denying employer deductions for expenditures pertaining to securing these fringe benefits.14 In light of growing taxpayer noncompliance, Congress would be wise not to ignore this problem.This Article urges immediate congressional action. It argues that, if left unaddressed, the failure to tax modern fringe benefits will have continuing pernicious effects on the income tax system. Not only does failing to tax fringe benefits shortchange the government and public of valuable tax revenue on income associated with those benefits, it also perpetuates the notion that tax enforcement is arbitrary and ill-defined.15 Additionally, not enforcing taxation of certain fringe benefits, while taxing comparable amounts of cash compensation, unfairly favors those employees who have access to fringe benefits.16 Failing to tax fringe benefits also encourages wasteful spending. …

The House Edge: On Gambling and Professional Discipline

Abstract: INTRODUCTIONOn March 26, 2014, the Iowa Supreme Court revoked the license to practice law of Cedar Rapids attorney Susan Hense.1 Admitted to the Iowa Bar in 1996, Hense subsequently misappropriated $837,011 in client trust funds to feed her addiction to casino gambling.2Hense is not the first Iowa attorney to be disbarred for conduct associated with gambling disorder. In 2006, the Iowa Supreme Court revoked the license to practice law of Council Bluffs attorney Michael Reilly.3 First licensed in 1982, Reilly subsequently misappropriated over $96,000 of an Iowa resident's personal injury settlement funds to finance his gambling.4 Prior to Reilly's disbarment, the Iowa Supreme Court also revoked the license of Des Moines attorney Stacie Lett.5 Lett, who specialized in family law, had misappropriated $5,000 in client trust funds in order to gamble.6Although Hense and Lett remain disbarred, other attorneys with gambling disorder have succeeded in petitions for license reinstatement. On June 18, 2015, the Supreme Court of Nevada reinstated the license of Las Vegas attorney Douglas Crawford.7 The State Bar of Nevada had temporarily suspended Crawford's license in 2007 after he misappropriated over $398,000 in client trust funds to finance his gambling.8 In the eight years between his license suspension and reinstatement, Crawford completed six weeks of intensive inpatient treatment for gambling disorder, hundreds of weekly therapy sessions, and thousands of Gamblers Anonymous meetings.9 Crawford, a leader in the Las Vegas recovery community, has used the income from his new law practice to pay tens of thousands of dollars in restitution to his former clients.10This Article examines how attorneys like Hense, Reilly, Lett, and Crawford-attorneys who are addicted to casino gambling, riverboat gambling, fantasy sports betting, storefront video gambling, or online gambling-are treated in professional disciplinary actions. As background, gambling is defined as the risking of something of value with the hope of obtaining something of greater value.11 Although gambling is prevalent in many cultures and most individuals who gamble do so without negative consequences, some individuals become significantly impaired as a result of their gambling behaviors.12The American Psychiatric Association (APA) first recognized pathological gambling as a mental disorder in the third edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-III), published in 1980.13 Originally classified as an impulse control disorder, pathological gambling was characterized with reference to an individual's chronic and progressive failure to resist impulses to gamble as well as gambling behavior that compromised, disrupted, or damaged the individual's personal, family, or vocational pursuits.14In the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published in 2013, the APA renamed the condition gambling disorder and reclassified it as a non-substance-related disorder within the larger substance-related and addictive disorders chapter, alongside alcohol use disorder and the various drug use disorders.15 According to the APA, gambling disorder's new classification reflects research showing that "gambling disorder is similar to [the] substance-related disorders in clinical expression, brain origin, comorbidity, physiology, and treatment."16 Today, mental health professionals consider gambling disorder to be a very serious disease of the brain.17 A mental health professional may diagnose an individual with the disorder if the individual meets four or more of nine diagnostic criteria in a twelve-month period and the individual's gambling behavior is not better explained by a manic episode.18Gambling disorder can adversely impact or result in the complete loss of family relationships, employment, and educational pursuits.19 Gambling disorder is also associated with poor general health, high utilization of medical services,20 and high rates of suicidal ideation and attempted suicide. …

Navigating through the Fog of Vertical Merger Law: A Guide to Counselling Hospital-Physician Consolidation under the Clayton Act

Abstract: INTRODUCTIONLawyers assessing the legality of vertical mergers under antitrust laws face a quandary. The case law is sparse, federal enforcement guidance outdated, and academic input conflicting. Applying these muddled standards in the rapidly-evolving health care sector only magnifies the uncertainty. Yet given the current wave of acquisitions of physician practices by hospitals1 and the commitment of the federal antitrust agencies to place a high priority on curbing health care consolidation,2 many practitioners are struggling to give sound advice as to whether such mergers might run afoul of the Clayton Act.3 This Article seeks to supply guidance on several thorny issues lawyers and courts must confront in this area.Although the federal antitrust enforcement agencies, the Federal Trade Commission (FTC) and United States Department of Justice (DOJ) (the Agencies), have devoted considerable resources to challenging mergers of acute care hospitals, only recently have physician mergers come under antitrust scrutiny. The increased attention is a natural response to the wholesale changes in provider relationships spurred by health care reform and pressure from commercial payers to encourage providers to accept new forms of reimbursement, manage care, and accept financial risk. Organizational changes in response to the legislative impetus to deliver care in a seamless and coordinated manner include accountable care organizations and patient centered medical homes along with a revival of various forms of joint ventures and alliances. Providers have responded by consolidating horizontally; thus, many physicians in small and large practices have merged into single specialty or multispecialty practices, and hospitals that already employ physicians have expanded their ownership of practices.4 There has also been a pronounced increase in mergers that, in terms of competitive effect, are purely vertical, i.e., hospitals acquiring physician practices. Because vertical mergers-consolidations joining firms providing different or complementary products or services in the production of a product-are likely to entail efficiency benefits even as they sometimes impair competition, assessments of net competitive effects are inevitably fraught. Moreover, given the probable clinical and administrative efficiencies flowing from integration of health services, evaluations of hospital employment of physicians need to proceed with caution. At the same time, antitrust analyses of possible vertical anticompetitive effects may be warranted based on recent evidence that some acquisitions of physicians' practices by hospitals result in higher physician prices.The few cases brought by the Agencies and state attorneys general that have proceeded to judgment or settlement all involve horizontal consolidations, usually a hospital expanding its number of employed physicians by acquiring additional practices; one older lawsuit involving a challenge by a rival hospital to a rival's employment of physicians applied a vertical analysis and found plaintiff's case wanting in several respects. While these cases shed light on some issues involved in analyzing a purely vertical merger, many important matters remain unaddressed. Moreover, Agency challenges to vertical mergers have rarely been litigated to a decision,5 and the Vertical Merger Guidelines are badly outdated.6 Adding to the uncertainty is the fact that new economic learning regarding vertical effects has yet to be incorporated into precedent. Finally, applying antitrust principles in health care is always a tricky undertaking, as market imperfections and the rapid pace of change make predictions predicated on the past unreliable.7 Yet lawyers must advise clients, the Agencies need to make sound enforcement decisions, and courts inevitably will chart new territory.To help penetrate the fog, we examine several issues that are likely to be central to analyzing hospital acquisitions of physician practices under the antitrust laws. …

The Learned Hand Unformula for Short-Swing Liability

Abstract: (ProQuest: ... denotes formulae omitted.)INTRODUCTIONUnder section 16(b) of the Securities Exchange Act of 1934,1 certain insiders may be held liable to a corporation for any "short-swing" profits realized from trading in the corporation's stock within a period of less than six months. The corporation is entitled to disgorgement of the maximum possible profit that can be calculated by any matching of the insider's purchases and sales within less than six months, according to Second Circuit case law, which has long been authoritative on the subject.2In Smolowe v. Delendo Corp.,3 the Second Circuit adopted the "lowest-in, highest-out" formula as a simple calculation intended to maximize the disgorgement of short-swing profits under section 16(b).4 The liability calculation in Smolowe involved a relatively simple sequence of insider transactions, all of which took place within a single six-month period and within the two-year statute of limitations.5 In a 1987 article, however, Arnold Jacobs presented hypothetical examples showing that the Smolowe formula6 may fall short of maximizing the short-swing profit calculation in situations in which the insider's trades span a period of more than six months or when some trades are not within the statute of limitations.7 In these situations, the calendar can preclude the recovery of profits from matching some low-priced purchases with higher-priced sales, a complication the Smolowe formula was not designed to take into account.8 Courts, commentators, and practitioners, however, have largely ignored these theoretical challenges to the formula's validity in adopting the Smolowe formula for use in all section 16(b) liability calculations.9This Article identifies another early Second Circuit case, Gratz v. Claughton,10 as the first reported real-world example of the Smolowe formula's failure to calculate the maximum possible profit. The liability calculation in Gratz was too complicated for the formula because it involved a sequence of hundreds of insider transactions spanning more than twenty-one months.11 Ironically, Gratz has been a staple of corporate case law and casebooks for more than sixty years as a leading authority for the formula's use, not least because of its distinguished author, Judge Learned Hand.12 However, neither the Second Circuit nor the district court performed any calculations in Gratz. In district court proceedings before a special master, the defendant proffered a liability calculation13 that fell more than $50,000 short of the short-swing profits that would have been found by the Smolowe formula. Perhaps overwhelmed by the prospect of checking the sums, the plaintiff stipulated to the defendant's calculation in the district court and did not challenge it on appeal.14 Accordingly, Hand adjudicated Gratz without performing a liability calculation or even mentioning the formula.15With the benefit of hindsight and subsequent developments in computing, the remainder of this Article elucidates the meaning, wisdom, and continuing significance of Hand's mathematical silence in Gratz. Part I of this Article sets the stage for this exposition by introducing the short-swing liability provisions of section 16(b), the Smolowe formula and its shortcomings, and the role Gratz has played in sustaining the Smolowe formula.Part II of this Article dispels the notion that Gratz in any way supports use of the Smolowe formula. Section II.A harmonizes the Second Circuit's adjudication of liability in Smolowe and Gratz and shows that Hand rightly did not read Smolowe to require use of the formula in Gratz. Section II.B explains that Hand wisely based his affirmance on Gratz's acquiescence in the judgment below and not on the master's putative adoption of the Smolowe formula, thereby devising a form of adjudication that might be dubbed "the Learned Hand unformula." Section II.C shows that Gratz could not have corroborated the Smolowe formula because the formula was probably not used to calculate Claughton's liability and would have fallen short even if it had been so used. …

The Law, Economics, and Medicine of Off-Label Prescribing

Abstract: (ProQuest: ... denotes formulae omitted.)INTRODUCTIONThere is a major dissonance in the current structure of regulating new drugs that have more than a single medical indication. Physicians are authorized to prescribe these drugs for all indications including those beyond their approved purposes. However, product manufacturers are expressly prohibited from marketing or promoting their drugs for any purpose other than those which have been specifically indicated.1 Thus, while prescribing physicians are encouraged to gain medical information on any additional indications, the information that physicians can obtain from the most likely source-the drug's supplier-is substantially constrained.2Although the Food and Drug Administration (FDA) originally accentuated this dissonance, it has more recently retreated from that posture; first under pressure from the statutory admonitions of 1997,3 and subsequently due to the Second Circuit's opinion in United States v. Caronia.4 However, the issue remains in flux and is the subject of this Article.In succeeding Parts, we review the legal, economic, and medical aspects of this dissonance: between what physicians are authorized to prescribe and what information drug manufactures are permitted to provide about their products. A critical feature of this dissonance is its connection to the two separate types of information about the therapeutic properties of pharmaceuticals, so we start with a discussion of this distinction. Finally, we suggest some policy conclusions to be drawn for this discussion.I. PHARMACEUTICAL EFFICACY AND EFFECTIVENESSThe U.S. drug approval process is a multi-stage process involving the identification of a potential drug and various trials that must be met to discern its safety and efficacy. The formal approval process requires manufacturers to submit a New Drug Application (NDA), which the FDA reviews in its decision-making process on whether to approve a drug for sale. Critically, drugs are approved only for the specific indications disclosed in the firm's NDA.An essential part of the NDA is its report on the three formal stages of testing required by the FDA. Phase I, usually conducted on healthy volunteers, focuses on safety and potential side effects, and may also be used to understand how the drug is metabolized.5 Phase II examines whether the drug appears to be effective for a specific indication, where the proposed drug is compared to a placebo or another drug.6 Safety and side effects continue to be assessed in these trials.7 Phase III is a much larger trial which assesses the efficacy of the drug in different subpopulations and at different dosages.8 Such trials can vary in their complexity, but their inferences of efficacy are fundamentally based on the statistical tests of the differences in outcomes in the patients treated with the drug and those treated with placebos or alternatives.9 Given the expense of Phase III trials and the numbers of patients required to assure that differences in outcomes are unlikely to be the results of sampling variation between the treated and control groups, the outcomes and indications studied in these trials are often quite limited.10At the heart of the ongoing policy debates concerning off-label prescribing lies the distinction between pharmaceutical "efficacy" and "effectiveness." That distinction follows from the different types of information that can potentially be gleaned on the therapeutic benefits gained from taking pharmaceuticals. Consider the difference between the information obtained from a formal clinical trial of a prospective drug and the information gathered from medical practice and experience resulting largely from observational studies.The clinical trials required by the FDA to be included in a company's NDA make little use of any substantive knowledge of the drugs being studied. The judgment that a drug is efficacious or not is based on the results of a randomized control trial, in which judgments on efficacy are made by ruling out, via statistical theory, that difference in outcomes between the treatment and control group are simply due to sampling variation. …

Legislating Agency Use of Unmanned Aerial Vehicles in Washington State

Abstract: INTRODUCTIONAs early as the 1960s, banks and at least one U.S. city installed video cameras to monitor public areas.1 By 1971, a federally funded program installed a video camera surveillance system, known as closed circuit television (CCTV), in a New York City suburb.2 Despite the fact that the presence of the CCTV system reduced crime in the area by fifty percent,3 some expressed concern over the constitutionality of the new technology.4 Then came events such as the first World Trade Center bombing in 1993 and the Oklahoma City bombing in 1995. These attacks on American soil made the public more concerned about security and more accepting of the video surveillance industry.5 Now video cameras can be attached to small flying objects, similar to the model planes of yesteryear,6 but these unmanned aerial vehicles (UAVs), commonly referred to as drones,7 can be used for things much more sinister than a recreational flight over an open field.8A UAV is a device without an onboard pilot that is "used or intended to be used for flight in the air."9 UAVs operate as part of a system, known as an unmanned aircraft system (UAS), which includes the device, "digital network, and personnel on the ground."10 The U.S. military's recent use of these devices in the "war on terror"11 has put citizens on high alert, especially with the increasing militarization of police forces on American soil.12 After years of news stories on "drone strikes" targeting terrorists but also killing or maiming innocent civilians in Afghanistan, Iraq, and Pakistan,13 Americans are apprehensive about the introduction of UAVs in their skies. But Americans appear less concerned about weaponized domestic UAVs and more concerned about the potential use of UAVs to invade their privacy.14 State legislators are trying to ease that apprehension by introducing legislation to make it difficult for law enforcement agencies to use drones equipped with video cameras to monitor citizens' movements.15This negative publicity has impeded the introduction of UAVs into potentially productive areas. Government use of UAVs could provide numerous benefits to citizens and the environment.16 Instead, worries over government's increased ability to subject citizens to ubiquitous surveillance17 led Washington State legislators to join in the rush to enact legislation restricting the use of UAVs by "agencies" in Washington.18 But the term "agencies" encompasses more than just Washington State Patrol and what the public would typically think of as a law enforcement agency.19 Lumping all Washington agencies together deprives entities like the Department of Natural Resources (DNR), Department of Fish & Wildlife (DFW), and Department of Ecology (Ecology) of the opportunity to use UAVs in their capacities as managers of public welfare, not as law enforcers.This Comment recognizes that concerns over privacy are valid, but argues that citizens should be less worried about the use of UAVs by agencies charged with protecting our environment, natural resources, and wildlife. Allowing some non-law enforcement agency use of UAVs, within Washington State's established privacy protections, will result in benefits to the public that will significantly outweigh any potential loss of privacy. Carefully drafted laws will ensure that citizens reap the substantial benefits of UAV use for environmental and wildlife regulation while still protecting privacy privileges from intrusion by law enforcement agencies.This Comment advocates for a permissive approach to legislating Washington State agencies' use of UAVs when acting in their capacities as managers of public welfare. Part I briefly covers the history of UAVs and discusses the public's privacy concerns before addressing the current state of privacy law in Washington. Part II explores the useful ways agencies like DNR, DFW, and Ecology could use these devices. In Part III, the Comment provides a brief summary the Federal Aviation Administration's (FAA) regulation of domestic UAVs20 before reviewing legislation introduced in the 2013, 2014, and 2015 Washington State legislative sessions. …

Kill the Snitch: How Henriquez-Rivas Affects Asylum Eligibility for People Who Report Serious Gang Crimes to Law Enforcement

Abstract: "[El Salvador] is a good place to kill. If you kill, you will get away with it."1INTRODUCTIONIn 1998, twelve-year-old Rocio Brenda Henriquez-Rivas' father was brutally assaulted and murdered in El Salvador by four M-18 gang members.2 Henriquez-Rivas observed the men assault her father and heard the gunshots that killed him as she fled the scene.3 She identified two of the suspects from a lineup and testified against them in court.4 Both men were convicted and sentenced to prison terms of seven years and twenty-five to thirty years, respectively.5 When Henriquez-Rivas returned to her father's home to collect some paperwork, an individual warned her that gang members recently visited her house and claimed responsibility for killing her father.6 A few years later, an unknown man visited Henriquez-Rivas' school and asked if anyone knew "Rocio Henriquez."7 Henriquez-Rivas feared the gang intended to harm her because she testified in court and because the gang was ordered to pay restitution to Henriquez-Rivas' family.8 In 2005, she fled to the United States and applied for asylum.9Now assume that shortly after Henriquez-Rivas filed her asylum application, another individual from El Salvador, Jaime,10 also applied for asylum. Imagine the facts in Jaime's case are strikingly similar to those of Henriquez-Rivas. Jaime witnessed his father's assault at the hands of M-18 gang members and escaped before anyone could harm him. As Jaime fled the scene, he heard the gunshots that killed his father. Jaime reported the crime to the local police and provided them with physical descriptions of each of the gang members involved in the assault and murder. However, unlike Henriquez-Rivas, Jaime refused to testify in court against the gang members because he feared the gang would exact revenge on him for his testimony. Given the level of corruption within the police department, Jaime also suspected law enforcement had already betrayed his trust by identifying him to the M-18. One week before trial, Jaime received a series of anonymous phone calls threatening his life. He promptly left El Salvador and sought asylum in the United States.The Immigration and Nationality Act of 1965 (INA) establishes the framework for determining whether refugees such as Henriquez-Rivas and Jaime should be granted asylum and a permanent home in the United States.11 According to the INA's definition, a "refugee" is someone who is (1) unable or unwilling to return to his or her home country (2) because of either past persecution or a well-founded fear of persecution (3) on account of race, religion, nationality, political opinion, or membership in a particular social group.12 Of these five protected interests, the term "particular social group" (PSG) is the most ambiguous.13The Board of Immigration Appeals (BIA) first confronted this ambiguity with its oft-cited PSG analysis in In re Acosta}4 After nearly thirty years of attempts to refine its definition, certain elements of PSGs remain a divisive issue among the circuit courts.15 While some circuits accept the BIA's PSG analysis, others have either completely abandoned it or modified the analysis to maintain consistency with the BIA's decisions made after In re Acosta.16In 2013, the Ninth Circuit decided Henriquez-Rivas v. Holder11 and recognized Henriquez-Rivas' membership in a PSG while rejecting the BIA's interpretation of PSG requirements.18 In overruling the BIA, the Ninth Circuit determined that Henriquez-Rivas had a well-founded fear of persecution because of her membership in a newly recognized PSG: "witnesses who testify against gang members."19 The Ninth Circuit's decision confirmed that a PSG exists in the absence of "on-sight" visibility if the member's identity has come to the attention of gang members.20 Although the decision did not address asylum eligibility for people in Jaime's position-Salvadoran witnesses who report serious gang crimes to law enforcement-the court's PSG analysis supports expanding eligibility to witnesses who do not testify. …

Our Corrosive Oceans: Exploring Regulatory Responses and a Possible Role for Tribes

Abstract: INTRODUCTIONIn the summer of 2007, oyster larvae at the Whiskey Creek Hatchery began dying by the millions.1 Located on Netarts Bay in Oregon, the Whiskey Creek Shellfish Hatchery raised larvae (also known as "seed") for shellfish growers along the Pacific Coast.2 Hatchery managers, scrambling to find the cause of the die off, quickly eliminated bacteria or disease in their tanks-other private growers had also suffered significant losses that year, as did wild larvae in Washington's Willapa Bay.3 After two years of research, National Oceanic and Atmospheric Administration (NOAA) scientists suggested a culprit: the rising acidity of seawater.4 Under laboratory conditions, studies showed that exposure to increasingly acidic water negatively impacted shell-forming marine organisms, including oysters.5 One study specifically investigated the vulnerability of the Pacific oyster (Cassostrea Gigas, a species grown by Whiskey Creek) and found that ninety-five percent of the larvae in acidified water developed malformed shells-or grew no shells at all.6 NOAA scientists, including Dr. Richard Feely, Ph.D., later replicated these results under real world conditions at the Whiskey Creek Hatchery.7 By testing the water flowing into the hatchery during a period of naturally higher acidity, Dr. Feely confirmed that ocean acidification is-at minimum-a contributing factor to oyster seed mortality.8Ocean acidification is the process by which seawater becomes more acidic through the absorption of atmospheric carbon dioxide (CO2).9 Acidification is a global concern, creating risks for shellfish and corals-economically and ecologically important organisms which may struggle to survive in increasingly acidic ocean environments.10 If scientists' acidification projections are correct, by the year 2100 seawater will be so corrosive that some organisms may simply dissolve.11 Simultaneously, the same chemical reaction increasing seawater acidity also reduces the availability of minerals used by shellfish and other organisms to build their shells and skeletal structures.12Although ocean acidification is a global problem, this Comment focuses on acidification in the context of the Pacific Northwest. This region is uniquely vulnerable to acidification, in part because losses to fish and shellfish harvests could significantly impact the regional economy-shellfish aquaculture alone represents over $100 million in annual regional revenue.13 The Pacific Northwest is also home to a number of fish and shellfish-dependent Native American tribes, including the Swinomish, the Makah, and the Suquamish.14 These coastal tribes may be disproportionately impacted by acidification due to their higher per capita fish consumption. Members of the Suquamish tribe, for example, consume up to 800 grams of fish per day,15 compared to the national average of roughly nineteen grams.16 Furthermore, ocean acidification has the potential to negatively impact tribal treaty rights, aspects of tribal culture, and spiritual traditions by further depressing salmon and shellfish populations.17While the full extent of harm caused by ocean acidification is unknown, NOAA's research shows that acidification has already contributed to millions of dollars in lost revenue by shellfish producers like the Whiskey Creek Hatchery.18 However, the traditional recourse in American law for recovering damages-the tort system-has proven to be an unreliable mechanism for remedying climate change-related harms.19 In short, the complexity of climate change-related harms is ill-suited to the tort system's rigid model of "duty, breach, . . . causation, and harm."20 There is little reason to expect that the outcome would be any different in the context of ocean acidification. For example, a shellfish producer harmed by acidification might step forward to bring a claim. Her losses would be reasonably easy to calculate-the known monetary value of farmed shellfish makes it straightforward to express damages as a dollar amount. …

Computer Fraud and Abuse Act Enforcement: Cruel, Unusual, and Due for Reform

Abstract: INTRODUCTIONCongress enacted the Computer Fraud and Abuse Act (CFAA) in 1986 at a time when computer crime concerns largely focused on threats to government computers and critical infrastructure networks.1 In the 1980s, most homes did not have a computer, and computer crimes generally required a user with sophisticated skills.2 Fast-forward thirty years and this is no longer the case. Technology has made its way into the hands and homes of everyday consumers. Given the CFAA's vague definitions, nearly anyone with access to the internet could easily and unknowingly commit a felony.This Comment argues that courts should look to Eighth Amendment principles when interpreting the CFAA and its definitions.3 Such principles suggest courts should compare the seriousness of the offense and severity of the sentencing with sentences of similar severity and sentences for the same criminal act.4 Unless and until Congress amends the CFAA to clarify its boundaries, courts should interpret unauthorized access similar to trespass in order to more clearly distinguish between encouraged, condoned, and forbidden online activities, especially when put in the context of today's technological proliferation.Congress has broadened the range of devices protected under the CFAA to now include private servers.5 Congress designed the CFAA to protect critical government infrastructure from outsider hacking, but the CFAA has been used to prosecute violations of a private website's terms of service6 and is frequently used in tandem with trade secret misappropriation claims against departing employees.7 Despite harsh criticism and calls for reform, proponents of the CFAA argue that the statute needs to be broad and flexible for national security purposes.8 This desire to catch bad actors results in wide-ranging prosecutorial discretion that may or may not shield everyday internet users from CFAA liability.9The difficult decisions regarding proper enforcement of the CFAA have fallen to the courts. For example, it is increasingly common for consumers to access software programs when connecting to service providers' servers instead of downloading a copy to their local harddrive.10 This near-constant access to private servers exponentially increases the instances of access to protected computers that form the base of any CFAA violation.11 Due to vague definitions and evolving technological norms, the courts are split on how to interpret the CFAA.12Part I of this Comment explains the history and intent of the CFAA and the circuit split resulting from the mismatch between its broad language and today's reality. Part II discusses how CFAA reform should look to evolving standards of decency and Eighth Amendment principles. Part III proposes that Congress reform the CFAA to require owners to provide notice of revoked access to users before a term of service violation can be used for a CFAA charge.I. THE CFAA IS OUTDATED AND VAGUEA. Congress Enacted Computer Crime Laws to Deter Outside Hacking of Government ComputersBefore home computers became prevalent, prosecutors viewed crimes that involved a computer or network as traditional crimes, such as internet gambling or cyberstalking.13 The use of a computer did not affect the elements of the crime. Computer crimes remained susceptible to federal prosecution under existing criminal statutes.14 In essence, crimes committed using computers were not necessarily crimes of computer misuse.15 Therefore, prosecuting crimes committed while using computers did not require new laws.Yet relying on established criminal laws was not always sufficient.16 The government had difficulty prosecuting malicious computer conduct under criminal statutes such as trespass and theft because the elements of those crimes relied on physical interaction with property.17 Responding to computer proliferation across government agencies and the threat of rogue employees and hackers, Congress created the category "crimes of computer misuse. …

Hospital Mergers and Economic Efficiency

Abstract: (ProQuest: ... denotes formulae omitted.)INTRODUCTIONCase developments in recent years have renewed attention on the antitrust implications of health care mergers. This attention is particularly important given the current trend of government victories against merging parties in merger challenges.1 The United States Supreme Court's 2013 decision in FTC v. Phoebe Putney Health System, Inc.2 was the result of a successful challenge of the anti-competitive merger of two hospitals in Georgia that attempted to shield the merger via state action.3 While the Supreme Court has not ruled in decades on the substantive aspects of antitrust mergers, two recent circuit court antitrust health care cases have received significant attention- ProMedica Health System, Inc. v. FTC4 in the Sixth Circuit and Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke's Health System, Ltd.5 (St. Luke's) in the Ninth Circuit.Efficiencies, known in the business world as synergies,6 play an important role in justifying mergers. By efficiencies, we mean decreases in price, increases in quality and/or output, or increases in innovation.7 Because the ProMedica district court found no efficiencies in the transaction, that case is, from a doctrinal standpoint, less interesting than the St. Luke's decision in the Ninth Circuit that found both procompetitive (efficiencies) and anti-competitive (monopoly power) effects present in the merger.8 The Ninth Circuit ultimately upheld the district court's decision to enjoin the merger.9 In doing so, the Ninth Circuit had the opportunity to undertake a serious economic analysis of the merger and to clean up dated case law that has failed to incorporate rigorous economic analysis of efficiencies and other competitive effects. Unfortunately, irrespective of the outcome, the Ninth Circuit's analysis was lacking. A more rigorous analysis would have provided guidance to improve case law for future courts. It also would bring predictability to merger cases decided in the shadow of the law in terms of merger planning for hospital acquisitions of physician groups, hospitals acquisitions of other hospitals, and for negotiations between merging parties and antitrust enforcers more generally. The lack of economically informed case law in St. Luke's is a missed opportunity to clarify merger law in light of the Supreme Court's absence in merger case law development.10In the St. Luke's case, St. Luke's Health System (St. Luke's) sought to acquire the Saltzer Medical Group (Saltzer).11 Saltzer was the largest independent multi-specialty physician group in Idaho.12 St. Luke's already had integrated eight primary care physicians within its Nampa hospital system.13 The combination of Saltzer's sixteen primary care physicians and St. Luke's eight primary care physicians raised antitrust concerns because the combined entity would control eighty percent of the adult primary care physicians in the Nampa area.14 Private plaintiffs brought suit to enjoin the merger under both federal and state antitrust laws.15 Subsequently, the Federal Trade Commission (FTC) and the State of Idaho also sought to enjoin the merger.16 The district court consolidated the actions and ruled in favor of the plaintiffs.17 On appeal, the Ninth Circuit affirmed the district court's holding.18The St. Luke's decision is based on a changing reality in health care. The Affordable Care Act (ACA)19 has served as the impetus toward increased health care consolidation for hospitals.20 Acquisitions by hospitals of physician groups are also on the rise.21 In 2015, health care spending was $3.1 trillion.22 The largest portion of health care expenditure remains hospital services, at more than five percent of GDP.23 Health care costs, therefore, are a significant policy issue and ways to reduce costs (and increase quality of care) remain critical to the U.S. economic outlook going forward.Additional consolidation is inevitable,24 but antitrust enforcement offers no clear solutions. …

State Standing to Challenge Federal Authority in the Modern Administrative State

Abstract: INTRODUCTIONAlthough political debates often inspire rhetoric couched in "states' rights," the reality is that the separate-spheres or dual-sovereignty conception of federalism no longer accurately describes the relationship between the states and the federal government. Rather, as the administrative state has grown to address the complexities of modern life, governments at all levels-federal, state, and local-have sometimes collaborated and sometimes competed for regulatory pieces of various problems. Governmental jurisdiction over many social issues, including environmental and public health issues, is largely concurrent and overlapping as states and local governments are charged with the authority to implement and enforce federal regulations and policies. An ever-growing number of scholars have recognized this shift in the jurisdictional landscape and seek to replace old notions of dual sovereignty with new accounts that capture the overlapping, contingent nature of federal-state authority.1 Scholars use adjectives, such as * "interactive,"2 "dynamic,"3 and "polyphonic"4 to capture contemporary federalism.The federalism scholarship identifies the potential virtues of concurrent jurisdiction, noting that it can encourage regulatory innovation, learning, and experimentation.5 Even so, unproductive conflicts between states and the federal government can and do arise.6 That is, federal and state regulatory approaches do not always complement each other, and states and local governments will not always agree with federal prerogatives. When irreconcilable differences arise, the federal courts provide a logical forum for their resolution.Although this may seem obvious, it is under-theorized in the federalism scholarship7 and is far from settled law. In fact, federal standing doctrine is notoriously unclear about the extent to which governments, and in particular the states, have constitutional standing to litigate questions of governmental authority in federal courts.8 Courts have grappled with state standing in recent cases on pressing social issues such as climate change regulation, health insurance reform, and immigration policy. In Massachusetts v. EPA,9 states challenged the EPA's decision not to regulate the emission of greenhouse gases (GHGs) from new motor vehicles.10 In the wake of new federal health insurance legislation, Virginia and other states sought declaratory judgments that portions of the new law exceeded Congress's constitutional authority.11 In 2015, states also challenged federal immigration policies of deferred action (or prosecution) for some individuals not legally present in the United States.12 And in late 2015, states filed lawsuits challenging the EPA's newly released rules governing the emission of GHGs from power plants (known as the "Clean Power Plan").13Supreme Court precedent identifies three kinds of state interests sufficient to meet Article III's case or controversy requirement for suit in federal court: proprietary interests, sovereignty interests, and quasi-sovereign interests.14 The first type of interest is analogous to private common law interests (state property and contracts, for example), which have long been recognized as legally justiciable.15 Though courts may grapple with whether a state has alleged a sufficient injury (one that is actual, concrete, and direct), proprietary injuries resemble injuries in suits between private parties and do not therefore raise questions unique to suits by states and local governments. The doctrinal puzzles grow instead out of decisions regarding the other two categories: sovereignty and quasi-sovereign interests.This is not surprising given that state sovereignty (and therefore quasi-sovereignty) simply cannot mean the same thing today as it did a century or more ago. Before the advent of the modern administrative state, federal law was less pervasive and less dependent on the collaboration of state and local actors for its implementation and enforcement. …

Not Too Separate or Unequal: Marriage Penalty Relief after Obergefell

Abstract: INTRODUCTIONThough happily married, Angela and David Boyter would divorce at year end only to remarry early the next year.1 What explains such strange behavior? Interestingly, the U.S. imperfect tax code motivated the Boyters' legal antics. Under the joint return system, certain couples pay higher taxes if married (as of December 31) than if unmarried. This results from the way the joint return system aggregates each spouse's earnings and then calculates the couple's tax based on joint marital brackets. Importantly, these joint brackets typically are larger than-but not twice as large as-the unmarried brackets.2 Thus, a married couple's taxes generally increase upon marriage (a marital penalty) when the spouses earn roughly the same amount as each other. In the other direction, marriage can reduce a couple's taxes (a marital bonus) when one spouse earns a great deal more than the other. The Boyters hoped to obtain the non-tax benefits of marriage for most of the year while avoiding the substantial tax hit associated with the marriage penalty.3While the marital penalty has existed for many years, recent family law developments place it back in the spotlight. In Obergefell v. Hodges,4 the United States Supreme Court held that states must allow same-sex couples to marry and give full recognition to such marriages.5 While same-sex couples may now marry throughout the United States, the joint return system imposes a significant cost on many of them. As a result, some such couples may decide to cohabitate in lieu of marriage or to opt for a civil union, domestic partnership, or other marriage-like relationship.6 This is because many same-sex couples are relatively even earners.7 Partly in light of this, some commentators have renewed calls to excise joint returns.8 Such elimination faces serious practical problems, including political and transitional concerns.9 Others have suggested higher joint brackets as a way to provide penalty relief. As illustrated below, however, this would cause an unjustified increase in marital bonuses with significant additional tax revenue loss.This leaves a problematic status quo: significant marital penalties without an obvious fix. We propose a unique and viable solution to this current quandary: provide married couples the option to calculate their income tax based on their separate earnings. The individual tax amounts would then be aggregated on a jointly filed marital return. By maintaining our deeply ingrained joint-return system, our proposal enhances political feasibility and minimizes transitional concerns. And unlike higher joint bracket allowances, our proposal allows marriage penalty relief without a corollary increase to marital bonuses. This limits revenue loss while preserving marital bonuses at an appropriate level.As noted above, our proposal would allow married couples the option to calculate taxes based on each spouse's separate earnings. Full penalty relief would require separate brackets equal to the single unmarried brackets. Given revenue concerns, the separate brackets need not rise to that amount, as any amount above half the joint level would provide some penalty relief. Thus, our approach provides attractive flexibility to balance penalty relief with revenue concerns.In this regard, our proposal differs from the existing, but rarely used, married filing separate status. Married people currently have an option to file separate returns. This is rarely advantageous since the brackets are just half the joint return amount. Our proposal differs from the current married filing separate option in two main ways. First, our "married calculated separate" approach provides penalty relief by providing bracket allowances above half the joint return amount. Second, under our approach, married couples would still file a joint return given the collaborative value of such joint action.The following example illustrates the above points. Assume a progressive rate structure for single taxpayers with a 20% rate on the first $150,000 of income and 30% thereafter. …

The Class Action as Trust

Abstract: IntroductionThe class action is one of the most controversial procedures in civil litigation.1 This is because the class action allows the class attorney to litigate and settle the claims of the class members without their consent.2 Courts and scholars have expressed concern that the class attorney may enter into suboptimal settlements to the detriment of the class members3 or fail to treat the individual class members fairly.4Many scholars have looked to the law of corporations to address the potential for abuse by the class attorney. Some scholars have directly analogized the class action to a corporation or similar entity.5 Others have used the literature on agency costs in corporate law.6 Generally, these scholars have argued in favor of opt-out rights for class members in class actions involving damage claims. Analogizing the class members to the shareholders in a corporation, they have argued that opt- out rights allow class members to assert some control over their claims, and thus provide a check against a potentially disloyal class attorney.7 They have also argued in favor of avoiding significant class conflicts to prevent unfair treatment of some class members over others.8 The law on class actions has generally mirrored the proposed reforms of these corporate law-influenced scholars, requiring opt-out rights for damage class actions9 and that such class actions can only be certified if the class is "sufficiently cohesive."10The turn to corporate law, particularly its literature on agency costs, has significantly influenced class action scholarship.11 In fact, the American Law Institute's recent Principles of the Law of Aggregate Litigation uses the agency cost literature in the corporate context both to support opt-out rights in class actions involving damage claims and to recommend against the certification of such class actions when "structural conflicts" exist.12However, these reforms have had disastrous results for class actions involving damage claims. Even supporters of opt-out rights have conceded that such rights can cause collective action problems, which undermine beneficial settlements.13 Moreover, the class cohesion requirement has made it difficult to certify even litigation involving small claims because in many cases, the claims lack "some glue holding" them together.14 This is ironic because the Supreme Court has stated that "[t]he policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights."15In analyzing the agency costs that may arise between the class attorney and the class members, scholars have ignored the trust and its unique features.16 In part this is because scholars have tended to lump together all organizational forms that separate ownership and control rights.17 Moreover, the scholars who have applied the corporate law literature on agency costs to the class action context are also corporate law scholars.18 Finally, the trust has only recently been subject to functional analysis by scholars.19But in ignoring the trust, scholars have overlooked a more analogous organizational form to the class action. For example, although scholars and courts have bemoaned the lack of direct control the class members can exercise over the class attorney, a similar lack of direct control is a defining feature of the trust.20 This lack of direct control distinguishes the trust from the corporation, which allows shareholders to choose corporate directors and officers.21 In addition, despite the prohibition on conflicts among class members, conflicts are pervasive in all class actions,22 and unlike corporate law, trust law uniquely facilitates the creation and maintenance of trusts with beneficiaries who have conflicting interests.23 These shared features of the class action and the trust provide a clue that the trust, rather than the corporation, may serve as a more useful model for the class action. …