Digital Commons Network^™

A Timely Right To Privacy, Stacey A. Tovino

Faculty Articles

On December 28, 2017, the federal Department of Health and Human Services ("HHS") settled its fiftieth case involving potential violations of the privacy, security, and breach notification rules ("Rules") that implement the Health Insurance Portability and Accountability Act ("HIPAA") and the Health Information Technology for Economic and Clinical Health Act ("HITECH"). This Article catalogues and examines currently available enforcement actions involving the HIPAA and HITECH Rules, including the cases in which HHS has entered into a settlement agreement with a HIPAA covered entity or business associate, the cases in which HHS has imposed a civil money penalty on a HPAA …

What Are Courts For? Have We Forsaken The Procedural Gold Standard?, Arthur R. Miller

Faculty Articles

This Article expands and updates my Alvin and Janice Rubin Lecture delivered at the Paul M. Hebert Law Center, Louisiana State University on March 8, 2017. I have tried to preserve its conversational style. At several points, however, that style did not translate to paper, but the substance of my remarks has not been changed. The citations are designed to be illustrative rather than exhaustive.

Widening The Lens: Refocusing The Litigation Cost-And-Delay Narrative, Arthur R. Miller

Faculty Articles

Lawyers are the focal point of the Judge’s Articles. But lawyers are not the only players on the litigation field, and I believe the dialogue should go beyond their behavior. To have a clearer picture of the cost-and-delay narrative, a wide-angle perspective rather than a telephoto view is necessary. What follows is an attempt to chronicle some of the legislative, judicial, and rulemaking procedural developments of the past half-century, as well as the influences of our complicated federalism. These are the tools that practicing lawyers use; I believe these developments are, at least in part, the by-products of the narrative …

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

Faculty Articles

This Article addresses the federal tax concerns of personal injury plaintiffs and the lawyers who represent them, typically on a contingency-fee basis. It explains when plaintiffs’ recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney’s fees and costs are deductible by plaintiffs. In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the …

Risks Faced By Foreign Lawyers In China, Chenglin Liu

Faculty Articles

This article provides an objective assessment of the potential risks that foreign lawyers face in China as they push the boundaries of the limits on their activities set by Chinese law. When the Shanghai Bar Association (SBA), a government-controlled organization, accused foreign lawyers of violating Chinese law and called for official action, some scholars dismissed the threat, claiming that there was no legal basis for a crackdown on foreign lawyers. These scholars erroneously maintained that the Chinese laws that regulate foreign lawyers are ambiguous and create "gray areas." In fact, the claims of the SBA are justified because the applicable …

The Right To Counsel In Criminal Cases: Still A National Crisis, Mary Sue Backus, Paul Marcus

Faculty Articles

In 1963, Gideon v. Wainwright dramatically changed the landscape of criminal justice with its mandate that poor criminal defendants be entitled to legal representation funded by the government. As scholars and practitioners have noted repeatedly over more than fifty years, states have generally failed to provide the equal access Gideon promised. This Article revisits the questions raised by the authors over a decade ago when they asserted that a genuine national crisis exists regarding the right to counsel in criminal cases for poor people. Sadly, despite a few isolated instances where litigation has sparked some progress, the issues remain the …

Studying The "New" Civil Judges, Anna Carpenter, Jessica Steinberg, Colleen Shanahan, Alyx Mark

Faculty Articles

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

Ethics In The Legal Industry, Michael Ariens

Faculty Articles

A brief item in the Hearsay section of the June 2017 ABA Journal was headlined "2%." This number indicated an increase in the percentage of lawyers, from 2012 to 2016, "who worked remotely within the legal industry." Making one's "office" a location other than the physical space leased or owned by oneself or by an employer is hardly news, even as applied to the work of lawyers. Lawyers know as well as anyone that technology allows one to work almost anywhere and, unfortunately, almost any time. What is striking in this brief news item is the use by the flagship …

Career Motivations Of State Prosecutors, Ronald F. Wright, Kay L. Levine

Faculty Articles

Because state prosecutors in the United States typically work in local offices, reformers often surmise that greater coordination within and among those offices will promote sound prosecution practices across the board. Real transformation, however, requires commitment not only from elected chief prosecutors but also from line prosecutors—the attorneys who handle the daily caseloads of the office. When these individuals’ amenability to reform goals and sense of professional identity is at odds with the leadership, the success and sustainability of reforms may be at risk.

To better understand this group of criminal justice professionals and their power to influence system reforms, …

Measuring Law School Clinics, Colleen Shanahan, Jeffrey Selbin, Alyx Mark, Anna Carpenter

Faculty Articles

Legal education reformers have long argued that law school clinics address two related needs: first, clinics teach students to be lawyers; and second, clinics serve low-income clients. In clinics, so the argument goes, law students working under the close supervision of faculty members learn the requisite skills to be good practitioners and professionals. In turn, clinical law students serve clients with civil and criminal justice needs that would otherwise go unmet. Though we have these laudable teaching and service goals — and a vast literature describing the role of clinics in both the teaching and service dimensions — we have …

Remarks On Patient Privacy: Problems, Perspectives, And Opportunities, Stacey A. Tovino

Faculty Articles

No abstract provided.

Are Workers' Compensation 'Alternative Benefit Plans' Authorized By State Opt Out Schemes Covered By Erisa?, Michael C. Duff

Faculty Articles

There is continuing interest by employers in providing workers compensation benefits through ERISAgoverned employee benefit plans States have authority under Shaw v Delta Airlines SCt 1983 to allow employers to comply with state workers compensation laws through use of alternative ERISAgoverned employee multibenefit plans This is a judicallycreated exception to Section 514a of ERISA ÔÇò the statutes sweeping field preemption provision But what if a state allowed compliance with its workers compensation law by creating a law ÔÇò an optout law ÔÇò that in essence said employers did not have to comply with its workers compensation law Is such a …

State Bar Efforts To Deny Accreditation To Faith-Based Cle Ethics Programs Sponsored By Religiously Affiliated Law Schools, Bill Piatt

Faculty Articles

Religiously affiliated law schools focus on the integration of faith in the formation of future attorneys and leaders. Yet our students are only our students for three years. We can extend our influence and continue to provide a faith-based perspective to them and to other attorneys during the thirty, forty, or more years of their careers by offering continuing legal education (CLE) courses, which bring attorneys and judges together to provide a model for incorporating faith and morality into our professional roles. However, CLE programs must receive accreditation by state authorities if participants are to receive credit for them. Recently, …

The Hipaa Privacy Rule And The Eu Gdpr: Illustrative Comparisons, Stacey A. Tovino

Faculty Articles

In this Article, Professor Tovino compares and contrasts three illustrative concepts and rights in the Privacy Rule and/or the GDPR, including the concepts of authorization and consent, the rights of amendment and rectification, and the right to erasure. Identified similarities reflect the core values of HHS and the EU with respect to maintaining the confidentiality and privacy of personal data and protected health information, respectively. Identified differences reflect the Privacy Rule's original, narrow focus on health industry participants and individually identifiable health information compared to the GDPR's broad focus on data controllers and personal data. Other differences reflect, perhaps, the …

Trial And Error: Lawyers And Nonlawyer Advocates, Anna Carpenter, Alyx Mark, Colleen Shanahan

Faculty Articles

Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …

Active Judging And Access To Justice, Anna Carpenter

Faculty Articles

"Being a good judge in this environment means unlearning what you learned in law school about what a judge is supposed to do. Fairness is doing things a federal judge would never do.” Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts. Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about …

Rulemaking Ex Machina, Melissa Mortazavi

Faculty Articles

Emerging technologies promise to expedite administrative rulemaking by analyzing public input through computerized natural language rather than clunky, old human brains. Moving far beyond software that keyword searches and deduplicates content, natural language processing (as a type of predictive coding) employs artificial intelligence that adapts and modulates depending on inputs, rendering it fluid and dynamic. With the current concerted push to streamline agencies, the question of how and when to use automation in rulemaking will likely be decided in the next year. Considering that recently, a single proposed rule garnered over 3.7 million public comments, mechanisms that can make comprehending …

Sovereignty And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

Faculty Articles

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned …

Teaching The Hipaa Privacy Rule: Illustrative Comparisons, Stacey A. Tovino

Faculty Articles

Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include, but certainly are not limited to, a final rule published on January 25, 2013, governing the use and disclosure of protected health information by covered entities and their business associates (the …

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

Judges Need To Exercise Their Responsibility To Require That Eligible Defendants Have Lawyers, Robert C. Boruchowitz

Faculty Articles

There are many courts in the United States, particularly misdemeanor courts, in which accused persons appear and often plead guilty without ever receiving the advice of counsel, even when they are eligible for a public defender. In various states, between twenty-five and sixty-eight percent of the defendants in misdemeanor cases do not have lawyers. In many courts in South Carolina, there is no public defender ever available. The American Civil Liberties Union (“ACLU”) has filed a class action lawsuit against two South Carolina cities, alleging that they are unconstitutionally denying counsel to eligible accused persons.

There is no question that …

Law School Clinic And Community Legal Services Providers Collaborate To Advance The Remedy Of Implied Warranty Of Habitability In Missouri, Karen Tokarz, Zachary Schmook

Faculty Articles

Missouri tenants have few defenses to uninhabitable housing conditions. In a statistical study conducted by the Washington University Civil Rights & Community Justice Clinic and the Metropolitan Saint Louis Equal Housing & Opportunity Council, which encompassed 6,369 landlord-tenant cases from the 2012 calendar year, only two cases (0.03%) resulted in a judgment in favor of the tenant, while 4,934 cases (77.5%) resulted in judgments in favor of the landlord, with the remaining cases being dismissed without a judgment. These findings suggest that unrepresented low-income tenants seeking to raise defenses in rent and possession and eviction cases in the Missouri state …

The Colors Of Cannabis: Reflections On The Racial Justice Implications Of California's Proposition 64, Steven Bender

Faculty Articles

No abstract provided.

Worse Than Pirates Or Prussian Chancellors: A State's Authority To Opt-Out Of The Quid Pro Quo, Michael C. Duff

Faculty Articles

Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration Another kind of workplace dispute privatization is presently underway or under serious consideration in several states In connection with state workers' compensation statutes one state has implemented and others are considering a dispute resolution model in which employers are explicitly authorized to opt out of coverage ÔÇ£Alternative benefit plansÔÇØ created under such statutes permit employers to among other things unilaterally and without limitation designate private factfinders whose conclusions are subject to highly deferential judicial review This model is arbitration on steroids While …

Opting Out In The Name Of God: Will Lawyers Be Compelled To Handle Same-Sex Divorces?, Bill Piatt

Faculty Articles

In June of 2015, the United States Supreme Court determined by a 5–4 ruling in Obergefell v. Hodges that same-sex couples have a constitutionally guaranteed right to marry. While this represents a momentous victory for homosexuals, many people are still vehemently opposed to the idea. Homosexuality is especially frowned upon in certain religions, including some sects of Christianity. Is it possible that attorneys who decline on religious grounds to provide legal services to same-sex individuals seeking divorces will be ordered to provide that representation? Might those attorneys be sanctioned if they fail to do so? These are both novel and …

Complying With The Hipaa Privacy Rule: Problems And Perspectives, Stacey A. Tovino

Faculty Articles

Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include a final rule governing the use and disclosure of protected health information by covered entities and their business associates (Privacy Rule). This Article addresses the question of what it means for …

Lawyers, Power, And Strategic Expertise, Colleen Shanahan, Anna Carpenter, Alyx Mark

Faculty Articles

This empirical study analyzes the experience of the parties described above, specifically the power, representation, and strategic expertise they bring to a dispute. Our analysis of these factors clarifies how representation may be a solution to the access to justice crisis. We find that a representative helps most parties most of the time. We also find that the other party’s representation and the representative’s strategic expertise are significant factors for understanding representation for civil litigants. This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the broadest and deepest collection of …

Sorting: Legal Specialization And The Privatization Of The American Legal Profession, Michael S. Ariens

Faculty Articles

Beginning in the 1950s, legal specialization was promoted to the majority of the American legal profession, small firm and solo practice lawyers, by the elite of the bar as the future of legal professionalism. Legal specialization was a form of sorting lawyers, and sorting was contrary to the traditional understanding of an undivided legal profession. Over the course of the next thirty years, this effort succeeded. This new understanding of legal professionalism emphasized the idea of competence based on a deep but particularized knowledge of law. This resulted in a slipping away of the beliefs that law was a public …

The Last Hurrah: The Kutak Commission And The End Of Optimism, Michael S. Ariens

Faculty Articles

No abstract provided.

Fraud On The Court And Abusive Discovery, David R. Hague

Faculty Articles

Unbeknownst to many, federal courts have the power under the Federal Rules of Civil Procedure to set aside judgments entered years earlier that were obtained by “fraud on the court.” Fraud on the court, however, can take many forms and courts and commentators agree that it is a nebulous concept. The power to set aside a judgment requires courts to strike a balance between the principles of justice and finality. A majority of courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is flawed. And courts that have …