A publication of the University of Memphis

Cecil C. Humphreys School of Law

+ HEALTH CARE’S DIGITAL FUTURE + SKETCHING THE LAW

MEMPHIS LAW MAGAZINE / SPRING 2016

Spring 2016 | Issue 5 The University of Memphis does not discriminate against students, employees, or applicants for admission or employment on the basis of race, color, religion, creed, national origin, sex, sexual orientation, gender identity/expression, disability, age, status as a protected veteran, genetic information, or any other legally protected class with respect to all employment, programs and activities sponsored by the University of Memphis. The following person has been designated to handle inquiries regarding non-discrimination policies: Michael Washington, Director for Institutional Equity, mswshng1@memphis.edu, 156 Administration Building, 901.678.2799. The University of Memphis policy on nondiscrimination can be found at http://policies.memphis.edu/UM1381.htm.UOM252-FY1516/6M Hot Graphics

DeanPeter V. Letsou

Executive EditorRyan Jones

Contributing WritersRyan JonesJohn NewmanToby Sells

PhotographyRhonda CosentinoRyan Jones

Art Direction and DesignArcher Malmo

Published byThe University of MemphisCecil C. Humphreys School of Law1 North Front StreetMemphis, TN 38103(901) 678-2421www.memphis.edu/law

To submit story ideas, alumni updates, or for other ML related inquiries, please contact executive editor Ryan Jones at rjones1@memphis.edu.For limited advertising opportunities, please contact Ryan Jones at rjones1@memphis.edu.

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

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

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

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

Cordially,

Peter V. Letsou

Dean

Dear Friends,

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

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

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

Our new strategic plan provides a blueprint to guide the law school through the next five years. Our fundamental mission has not changed since our founding, but the legal profession has undergone significant transformation, especially in recent years. These changes have created new challenges for the nation’s law schools.

A Strategic Plan for our Future

DEAN’S LETTER

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

INITIATIVE TWO: ACADEMIC PROGRAMS AND CURRICULUMWe will review and appropriately revise our curriculum to ensure that our students have the knowledge and skills necessary to meet the needs of today’s practice. We will also provide our students with the means to better demonstrate the skills they have mastered to potential employers.

INITIATIVE THREE: EXPERIENTIAL KNOWLEDGE AND PROFESSIONAL SKILLSWe will expand our experiential learning programs into fields and areas of law especially relevant to Memphis and the region. We will also continue to emphasize and extend existing classroom and cocurricular experiential learning opportunities.

INITIATIVE FOUR: FACULTY, RECRUITMENT, RETENTION AND DEVELOPMENTWe will seek to attract and retain excellent teachers, but in today’s academic environment, excellent teaching and excellent scholarship go hand-in-hand. Accordingly, we seek to build a community of scholars, which will also enhance our reputation.

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

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

For a complete copy of the Cecil C. Humphreys School of Law strategic plan, see memphis.edu/law/documents/strategicplan_web.pdf. 11

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CONTENTS

10 FEATURES

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10 BITCOIN. THE MOST KNOWN UNKNOWN.BY RYAN JONESBitcoin may be the most famous thing in the world that no one truly

understands.

As it gains in popularity, businesses and governments around the world are

being forced to deal with the idea of Bitcoin as a serious concept. From taxation

and currency matters, to regulatory questions and money-laundering concerns,

the legal arena is replete with issues related to Bitcoin and its technology.20

REGULATE OR INNOVATE? A LOOK AT THE LEGAL ISSUES SURROUNDING DIGITAL HEALTH TECHNOLOGYBY TOBY SELLSThe healthcare industry is a tidal wave of information that’s fed daily by technology,

pushing it bigger, faster, and fuller ever onward. No industry creates, collects, reviews,

and stores neither the amount nor the variety of data than the healthcare industry.

This article examines some of the legal issues surrounding emerging technology in

the healthcare field and what is being done to safeguard patients’ privacy, while also

allowing for innovation in the field.

SKETCHING THE LAWBY RYAN JONES ARTWORK BY JEANNE SEAGLE AND BOBBY SPILLMANFor years, courtroom sketch artists were traditionally the general public’s eyes at high-

profile trials. It’s an echo from a bygone era in American legal history. However, the ranks

of courtroom artists have thinned as technology has evolved and states have steadily lifted

longstanding bans on cameras in courtrooms. Take a look at some examples from Mid-

South courtrooms over the years.

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

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

SETTING THE BAR: Memphis Law Alumni Class Notes

FACULTY ACCOMPLISHMENTS

WHAT IS THE REAL COST OF FREE?BY PROFESSOR JOHN NEWMANProfessor Newman’s paper, “Anti-trust in Zero-Price Markets: Foundations,” was

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

that follows, he touches on some of his points and ideas in that article to help the

reader understand that “free” online products are not really and truly “free,” and

how that could potentially harm our society and marketplace.

DIVISIONS

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BRIEFS:News + Events

A PARTNERSHIP WITH A DIFFERENT POINT OF VIEW

BY RYAN JONESMemphis Law’s new Medical-Legal Partnership with Le Bonheur Children’s Hospital and

Memphis Area Legal Services gives students a chance to step outside of the courtroom

and into the hospital.

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

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Caroline Gordon

Lyle Gruby

Thomas Morrison

Lakevia Perry

Brian Burns

Memphis, TN

Jacksonville, FL

Washington D.C.

Covington, TN

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THE HON. ROGER PAGE (JD ’84) APPOINTED TO TENNESSEE SUPREME COURTTennessee Gov. Bill Haslam has appointed the Hon.

Roger Page (JD ’84) to the Tennessee Supreme Court.

Judge Page has been a judge on the Tennessee Court

of Criminal Appeals since December 2011 and will join

fellow Memphis Law alumna Justice Holly Kirby

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

UNITY MARCHMemphis Law student organizations, led by SBA and

BLSA, organized and led the Memphis Unity March in late

February. Over 50 Memphians gathered in Court Square

to celebrate unity and stand together for justice, dignity

and respect for all. Local attorney Maureen Holland and

former Mayor AC Wharton spoke to the crowd before all

participants marched along Main Street to the National

Civil Rights Museum.

MEMPHIS LAW RECEIVES HEED AWARDThe University of Memphis Cecil C. Humphreys School of

Law was awarded the 2015 Higher Education Excellence

in Diversity Award (HEED) from INSIGHT Into Diversity

magazine, the oldest and largest diversity-focused

publication in higher education. Memphis Law is one of

only five law schools in the nation to receive the award.

WILLIAM TERRELL (JD ’14) AWARDED INNS OF COURT TRIP TO EUROPEWilliam Terrell (JD ’15) of Glassman, Wyatt, Tuttle & Cox,

PC, has been selected to study internationally this year,

through a program with the American Inns of Court.

Through the Pegasus Scholarship Trust, two American

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

weeks to study the English legal system. The Pegasus

Scholarship makes it possible for gifted young lawyers to

learn about the practical workings of the common law

system in countries other than their own and to form

enduring links with lawyers in those countries.

2016 DIVERSITY & PRE-LAW DAYThe 2016 Diversity & Pre-Law Day was held at the law

school on February 19. The Keynote Speaker was the

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

Western District of Tennessee and federal judge for the

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

pending U.S. Senate approval.

DUBERSTEIN BANKRUPTCY MOOT COURT TEAMThe Duberstein Bankruptcy Moot Court Team of Meagan

Jones and Deniger Cobb advanced to the semifinals of

the national competition in New York in the spring. They

advanced to the top 16 out of 50+ teams. The Memphis

Law 2L team performed admirably as well.

TENNNESSEE SUPREME COURT AT MEMPHIS LAWThe Tennessee Supreme Court visited Memphis Law and

held oral arguments in the law school’s historic courtroom

on November 5, 2015. The court heard two cases during

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

a valuable opportunity for students to see some of our

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

and our first Tennessee Supreme Court Justice, Justice

Holly Kirby (JD ’82).

NEW LAW SCHOOL HIRESIn the past few months, the law school has hired several

new staff members. We are proud to welcome the

following individuals to Memphis Law! Our new public

interest counselor, Jerri Green, joins our Career Services

Office to assist our students with pro bono and public

interest matters. Additionally, Kara Phillips has joined

the Memphis Law team as the new assistant director

for admissions, where she will help Dean McClellan

recruit even more prospective law students to Memphis

Law. The law school also welcomed our new business

officer, Chris Whitehead, in early 2016. The law library

has also hired several new staff members as well, with

the addition of Steve Richardson, information services

librarian, and Meghan Cullen, law library assistant III.

FREDERICK DOUGLASS MOOT COURT TEAM The Memphis Law Frederick Douglass Moot Court Team,

consisting of 2Ls Dawn Campbell and Erica Coleman, and

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

regional competition to the National Frederick Douglass

Moot Court Competition in Baltimore.

BRIEFS: NEWS + EVENTS

SOUTHERN CLINICAL CONFERENCEThe 2015 Southern Clinical Conference was hosted at

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

was Confronting Issues of Race and Diversity in Clinical

Legal Education. Professors and clinical directors from

law schools across the country attended the conference,

which was coordinated and planned in large part by

Memphis Law Assistant Professor of Law and Director of

Experiential Learning Danny Schaffzin.

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

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

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

highly regarded legal and urban revitalization experts.

CHILDREN’S DEFENSE CLINICThe law school is moving forward with the creation of a

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

Clinic will provide legal representation to youth who are

charged in delinquency proceedings in Shelby County

Juvenile Court and in related matters. The clinic is

expected to officially open at the start of the Fall 2016

semester.

NEIGHBORHOOD PRESERVATION FELLOWSHIPThe City of Memphis has provided the law school with

funding to create a “City of Memphis Neighborhood

Preservation Fellowship” for a recent graduate. Once

selected, the fellow will assist in case handling and

management for Neighborhood Preservation Act cases

and other Environmental Court cases filed by the City.

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

work out of the law school’s Neighborhood Preservation

Clinic office.

2016-17 UNIVERSITY OF MEMPHIS LAW REVIEWThe incoming Volume 47 Editorial Board members of the

University of Memphis Law Review are as follows:

Lyle Gruby, editor-in-chief

Maygan Peaks, managing editor

Jordan Emily, senior articles editor

Olivia Garber, senior notes editor

Taylor Oyaas, research editor

Will Podesta, business editor

Pablo Davis, symposium editor

Gale Robinson, articles editor

McKenzie Reed, articles editor

Alexis Peddy, articles editor

Danielle Salton, articles editor

Kristen Downey, notes editor

Dylan Gillespie, notes editor

Callie Tran, notes editor

Dylan Holzemer, notes editor

Suzanne Lamb, notes editor

Zach Johnson, notes editor

HEALTH LAW INSTITUTE SYMPOSIUMThe University of Memphis Institute

for Health Law & Policy held its annual

symposium on February 19. “An ACE in

the Hand of Policy Reform: Loading the

Deck for a Trauma-Informed Juvenile

Justice System” featured presentations

from Mark Soler, executive director for

the Center for Children’s Law & Policy,

Washington, DC; Stephen Bush, Shelby

County Public Defender; the Hon. Dan

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

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

Loading the Deck for a Trauma-Informed Juvenile Justice System

February 19, 2016

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

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

Having a child who is struggling through an illness can

be one of the most difficult things for a parent. It can

be even more difficult and intimidating for someone

with little money, education or other valuable resources

at their disposal. Hospitals can be a scary place for

someone in these circumstances, which is why hospitals

and healthcare systems across the country have begun

establishing “medical-legal partnerships.”

The University of Memphis Cecil C. Humphreys School

of Law, Memphis Area Legal Services (MALS) and Le

Bonheur Children’s Hospital formed their own regionally

unique Medical-Legal Partnership (MLP) last year called

Memphis CHiLD, with a special legal clinic located onsite

at Le Bonheur, designed to help patients with unique legal

needs find the help they need to improve their health and

circumstances.

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MK Smith

The Medical-Legal Partnership Clinic was such a rewarding

and valuable addition to my law school experience.

Working in the clinic allowed me to grow both personally

and professionally. Participating in this clinic exposed

me to some of the needs within our community that

generally go unnoticed and unaddressed. I was exposed

to individual client concerns, which allowed me to identify

great policy issues that directly relate to my interest

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

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

handled, we were dealing with habitability issues, utility

issues, or governmental entities, all of which potentially

forced us to confront difficult obstacles before reaching

our clients’ goals. Throughout the clinic, we represented

clients who did not have many advocates, or were not

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

truly made the experience special. We all became truly

invested in each of our cases.

Gracie Gelfand

The Medical-Legal Partnership Clinic was my first opportunity

to work closely with clients and handle their individual cases

from start to finish. It taught me first and foremost how to

interact with a client and ask them often delicate questions

in a both useful and sensitive manner. I learned very practical

skills such as how to interview a client and how to discern

what information given to you by the client is relevant and

what is tangential. Real-life clients are not a legal fact pattern

on an exam and all of the information needed to solve the

issue may not be neatly placed in front of you.

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

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

emotional safety.

I had never worked in a legal-aid setting before this clinic.

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

never seen personally the numerous ways in which simply

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

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

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

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

you are going to feed your child today. When disagreements

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

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

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

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

empathize.

Benjamin Lewis

As law students and even as young attorneys, we are

typically relegated to working amongst individuals in

the legal field, so getting to branch out and experience

some interdisciplinary education was very eye-opening.

It was quickly evident to me that doctors and attorneys

approach problems very differently. A typical initial

meeting for a doctor and patient may last only minutes,

whereas a first consultation between an attorney and

client can last hours, and where patients often have a

general idea of what ails them, clients usually do not

know the specifics of their legal problem. Although there

may be small distinctions in the methods used by doctors

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

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

residents and medical students that we worked with

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

to learn more about our clients’ diagnoses and medical

history.

Meghan Jones

What I loved most about the MLP Clinic was seeing my

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

mother and her 20-year-old educationally challenged

son. She was hoping for an advanced care directive to

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

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

immediately went down to draft the plan. Once drafted,

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

and explain what everything meant. After he gave an

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

be implemented that day. All the mother wanted was to

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

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

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

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

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

MLP clinic.

Types of IssuesNew to Memphis, a mother and her 8-year-old son move

into a house that they can afford because they were able

to secure a Section 8 voucher, a federal funded housing

voucher for low-income families. Over the next year, the

child visits the Emergency Department at Le Bonheur

11 separate times due to repeated asthma attacks.

He’s admitted twice and is so sick that one of those

admissions is to the Intensive Care Unit. His mother tells

the medical staff at the hospital that her son is coughing

and wheezing at home despite the fact that he takes his

medication every day and no one in their home smokes.

Dr. Lauren Mutrie, a pediatrician at Le Bonheur who is a

key member of the MLP team, treats the child and asks

about conditions in the home. It turns out that the house

has a mold problem, but the landlord has refused to take

action despite repeated requests from the family. The

family cannot afford a lawyer to address this landlord-

tenant issue. Thanks to the MLP Clinic, Dr. Mutrie can

now refer the family to the MLP team, consisting of

several Memphis Law students, a supervising attorney

and caseworker from MALS, and a team of medical

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

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

the home) improved.

Lessons Learned,Experience GainedThe students in the inaugural semester of the MLP Clinic

all gained the type of incredible experience that the law

school hoped they would when it first devised the clinic

and partnership with Le Bonheur and MALS. Several have

continued to work on cases pro bono, even though their

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

away from the clinic with a new understanding of poverty

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

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

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Caroline GordonClass of 2016During my law school summers I clerked for the Law Office of J. Houston Gordon in Covington, Tennessee. The most memorable part of this job was the hands-on experience I gained. I assisted in drafting appellate briefs to the Tennessee Criminal Court of Appeals and drafted pleadings. I also attended hearings, including arguments, before the Tennessee Court of Appeals.

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

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

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

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

Five Memphis Law students reflect on how their summer jobs have helped define their legal education and personal growth.

Caroline Gordon

Lyle Gruby

Thomas Morrison

Lakevia Perry

Brian Burns

Memphis, TN

Jacksonville, FL

Washington D.C.

Covington, TN

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

My advice to anyone who is anxious about finding a job is to embrace the uncertainty and be systematic in applying. It may take some time, but if you make a habit of applying to a new job every day, you will find something eventually.

Thomas MorrisonClass of 2016For the past two summers, I have worked for the Law Office of David Goldman in Jacksonville, Florida. Mr. Goldman specializes in estate planning, but is well known in the legal community for creating the gun trust. Gun trusts are simply an estate planning tool that allows people to pass guns to loved ones and avoid costly probate. In addition to gun trusts, Mr. Goldman is an expert at designing trusts, wills and other estate planning tools to achieve just about any goal of his clients.

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

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

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

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

Brian BurnsClass of 2016I spent one summer during law school working for the Commodities Futures Trading Commission at their headquarters in Washington D.C. The commission regulates the trading of futures contracts in everything from bushels of corn, to interest rate swaps. The CFTC is roughly analogous to the SEC, and, in fact, the agencies have joint jurisdiction over the trading of futures on stocks.

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

After an opportunity at a local firm fell through at the last moment, I expanded my job search and was applying all over the country. The post for this position did not appear at USAjobs.gov until a week before spring finals started. As I had been doing for weeks, I drafted another cover letter, tweaked my resume and sent it in. By the time I heard back from the CFTC, I had been working in Chicago

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

LaKevia Perry Class of 2016While externing in the Juvenile Division of the Shelby County Public Defender’s Office last spring, I worked with April Frazier-Camara, an amazing attorney, who suggested that I work outside the state of Tennessee over the summer. During our discussion, I decided on Washington, D.C., and began my search on PSJD.org, a public interest job resource that all Memphis Law students have access to. On PSJD, I found a posting for a legal and policy intern at the National Juvenile Justice Network, (NJJN). NJJN is a policy organization with member organizations located in 40 states that supports and enhances the work of state-based juvenile justice advocacy groups. As a legal and policy intern, I helped with their annual conference where member organizations send representatives from around the country, researched positive state legislative changes regarding juveniles, and researched the status of juvenile sex offender laws around the country.

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

Lyle GrubyClass of 2017I externed for the United States District Judge of the United States District Court for the Western District of Tennessee Sheryl H. Lipman in the summer of 2015. I

Living is Easy (But Not THAT EASY)

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By Ryan Jones

BITCOIN may be the most famous thing in the world that no one truly understands.

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

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

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

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

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BITCOIN BASICS

Bitcoin is a form of virtual currency that first

appeared in 2009. It exists solely in electronic

form and is a purely decentralized, anonymous,

peer-to-peer digital currency with no third party

intermediary. This means Bitcoin is not regulated

by any central government. Nor do transactions

involving Bitcoin require the need for a bank, credit

card company, escrow agent or recording agency.

This means that the value of a Bitcoin — currently

$385.01 per Bitcoin — is based solely on trust,

public perception and adoption rate.

“Market forces are more likely to step in to build

trust in what is still a nascent, though growing, form

of payment,” says Baker Donelson attorney William

Norton, who specializes in business technology

issues. In an interview with the Christian Science

Monitor, Norton points to escrow or

exchange-type services, such as

Coinbase, that have already

emerged to help buffer

consumers and businesses

alike against the risks of a form

of payment that many still regard

as experimental.

A Bitcoin is a piece of computer code (algorithms,

really) that represents monetary units. The

computer code written for Bitcoin ensures there

will only be about 21 million Bitcoins generated

through 2140, with just over 15 million Bitcoins in

existence today. Similar to cash transactions,

Bitcoin transactions are irreversible, unlike credit

card transactions, and can only be refunded by

the person receiving the funds.

To understand Bitcoins and how they are made

and owned, one needs to understand four critical

elements of the Bitcoin world: the protocol,

the blockchain, the transaction and finally, the

digital signature or key. There is no physical

manifestation that someone can pick up and

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

ownership of a secret number or private key.

The protocol for Bitcoin is a method of communication in

which computers send, receive and manage the supply

of those 21 million Bitcoins. This network comprises all of

the computers using the Bitcoin protocol, while a Bitcoin

transaction is a file that specifies a destination, a source

and a specific amount of Bitcoin.

A participant in this network starts a transaction by

authoring a transaction file and sending it to the Bitcoin

network. Then, the transaction is verified in a process

called “mining.”

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

Essentially, mining refers to how, in essence, Bitcoins are

mined like gold and other precious metals, meaning in

small quantities relative to the total supply, so that in turn,

the total supply grows slowly.

According to Coindesk.com, mining is a reward-based

incentive mechanism to maintain the validity and

timeliness of the blockchain.

A Bitcoin is a piece of computer code (algorithms,

really) that represents monetary units.

11

Once each block of transactions over a 10 minute period

is confirmed – meaning that a miner has verified that

all transactions in the block are valid and the miner has

proved to more than 50 percent of the rest of miners that

his work was accurate — then that mined-block is added

to the existing chain of previous transactions (hence

“block-chain”).

Miners’ ledgers are automatically updated to reflect the

latest additions to the chain, and the single miner who

added the block receives a Bitcoin reward. The process

of verifying transactions is essentially a computer race

among miners where the winner receives Bitcoin.

The Bitcoin code is programmed to automatically release

a set amount of Bitcoin to the quickest miner for every

10 minute period. This is how Bitcoin are released into

circulation without the need for a monetary authority.

Since the Bitcoin network is public and open-access,

every computer in the network has a copy of every

Bitcoin transaction that has occurred. The database,

known as Bitcoin’s public ledger, refreshes the record of

Bitcoin transactions every 10 minutes.

The blockchain is seen by many as the most important

aspect of Bitcoin. This groundbreaking decentralized

public ledger is at Bitcoin’s technological core. The

decentralization of Bitcoin and the blockchain make it

virtually impossible to hack. The computers running the

network are spread across the globe and there is no entity

or monetary authority overseeing the mining process.

Unlike other trendy technology sector players such as

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

entity.

Bitcoin resembles email, in that it’s a person-to-person

internet-based technology that allows information (and in

this case, funds) to be transferred efficiently.

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

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

can create an account on an independent website that

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

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

must secure and back up. These clients and programs all

connect to each other over the internet, forming peer-to-

peer networks.

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

transaction for that amount. The Bitcoin network will

verify that amount, using a digital signature or key.

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

which is a very large random number known only by

the Bitcoin’s owner. The second is the public key, which

is derived from a complex mathematical function and

decrypts messages encoded with the associated private

key. This public key is freely available to anyone, but

both keys must be used to complete a transaction.

Bitcoin transactions are basically encrypted messages

that instruct the Bitcoin network to move an allocation of

Bitcoins from one location to another, so Bitcoins may be

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

author of the transaction itself uses the private key in his

possession to initiate the transaction. The Bitcoin protocol

associates the ownership of a Bitcoin with a private key,

not with an individual’s name or any other identifying

information. Therefore, the loss of a private key means

that all Bitcoins associated with that private key are lost.

SO WHY WOULD I USE BITCOIN?

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

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

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

Bitcoin becomes ubiquitous.”

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

consumer, but some retailers are taking the first steps,

and it’s a perfectly suited form of currency for emerging

countries without central banks or other financial

intermediaries. It also has advantages for those dealing in

international exchanges, anonymous purchases and for

businesses dealing in the global economy.

According to Coinbase, an online Bitcoin information

community network, there are some specific reasons

people choose to use Bitcoins.

A person who wants to own or use Bitcoins can choose

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

she can create an account on an independent website that runs a Bitcoin client for users

of that site.

“Bitcoin has a small core of believers, but the

mainstream isn’t jumping into Bitcoin.”

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

else, there is no required involvement from a payment

processor. This means the fee for each transaction is

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

is no central entity controlling the network, there is no

need to trust or receive permission from any person or

organization to participate in the Bitcoin network. For this

reason, Bitcoin is global and resilient to problems that

have plagued traditional currencies.

Effortless online payments: In many cases, using Bitcoin

is the easiest and quickest way to make a payment on

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

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

any personal information. The merchant doesn’t need

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

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

(like cash).

Reduced risk for merchants: Accepting traditional credit

card payments is not only expensive for merchants, it also

leaves them open to fraudulent payment reversals and

chargebacks. Since Bitcoin payments are not reversible,

merchants can be sure that the payment will not be

cancelled fraudulently.

Complete control over your money: Bitcoin provides

the freedom to store and control your money without

restrictions, penalties and fees commonly imposed by

banks. You are also able to make decisions about your

finances that were previously the exclusive domain of

financial institutions and governments.

“Under traditional currency, governments are able to

influence the economy through central banks altering the

currency supply,” says Memphis Law adjunct professor of

cyberlaw and Butler Snow attorney, Jonathan Skrmetti.

“If significant economic activity moves over to Bitcoin,

governments are less able to tweak things through central

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

Investors are also looking at Bitcoin as a new avenue

for investment returns. There is a preset cap on the

maximum number of Bitcoins in circulation, so there is

a scarcity factor that contributes to Bitcoin value, similar

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

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

even if a financial or economic crisis disrupted traditional

banking and financial markets.

VARIOUS USES AROUND THE GLOBE

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

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

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

American has little need for Bitcoin, because of the wide

variety of convenient options for making payments and

transferring funds, including traditional options such

as bank accounts and credit or debit cards and newer

options such as PayPal, Square, and even Facebook and

Snapchat.

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

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

international retailers and large businesses that accept

Bitcoin is growing, and now includes Overstock.com,

Zappos, Amazon, CVS, Tesla, Victoria’s Secret, Target,

Expedia.com, Whole Foods, Kmart, Sears, Gap, Home

Depot, and many, many more.

“Like any other product, Bitcoin has to

compete for users,” said John Newman,

assistant professor of law at the University

of Memphis School of Law. “The only

difference is that Bitcoin’s competitors

aren’t consumer products like bread or

cars. Instead, Bitcoin competes with other

currencies like the dollar or euro.”

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

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

developing nation, Bitcoin and digital currencies provide

a way to inexpensively move money across international

borders. “Where the traditional currency competitors

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

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

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

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

dubious.”

For years, Western Union was the traditional stalwart

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

expensive and take unpredictably lengthy amounts of

time for the transfers to go through. Bitcoin provides the

ability to use the Internet as a fast and reliable means to

transfer funds to another, rather than using a third-party

like Western Union. Additionally, these digital currencies

offer residents in developing nations the ability to spend

and store money without needing a bank account

or credit card, services that are often absent in the

developing world. For example, a report from “Enhancing

Financial Innovation and Access,” a nonprofit backed

by the Bill and Melinda Gates Foundation, found that in

2014, just 36 percent of the local population in Nigeria

had access to any sort of traditional banking service.

There are several companies in Nigeria that are currently

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

network that will span Nigeria and beyond. They are

working with a company in Nigeria that provides software

for small bank-like institutions across Nigeria to try to

provide a cheap way to send money to friends and family

“The legal controversy around Bitcoin seems to be driven largely by its relative anonymity — it provides a

uniform means of exchange that can’t be easily tracked

by government.”

Cont’d on pg 29

13

Regulateor

Innovate?

By Toby Sells

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he healthcare industry is a tidal wave of information that’s

fed daily by technology, pushing it bigger, faster and fuller

ever onward (hopefully never meeting some far-away

shore). In fact, it’s likely that no industry creates, collects,

reviews and stores neither the amount nor the variety of

data than the healthcare industry.

Even before a patient opens the door to the doctor’s

office, they’ve shared a wealth of information. Contact

information, maybe bank account information, certainly

insurance information (which contains employer

information) and even the patient’s medical history

(which today could contain everything from the details

of your birth to prescriptions you took that morning) is

usually all recorded on a computer before they are ever

asked to open up and say “Ah!”

That data — medical, historical and financial — is some

of the most personal and sensitive information in

any industry anywhere. It’s a gold mine to doctors,

researchers, healthcare administrators, government

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

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

But hackers want that information, too. The street value

for medical information (which can average $363 per

record) is a lot higher than just financial information

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

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

be giving up any time soon.

They’ll target a clinic, hospital, or insurer, look for back

doors (or create their own doors) into their servers,

and haul that high-priced digital loot away in virtual

getaway cars. Sound like an unrealistic plot from a heist

movie? This very thing happened to about 112 million

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

population. This led leading national media outlets and

healthcare trade journals alike to dub 2015 the “Year of

the Healthcare Breach.”

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

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

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

every day consumers are busy churning up tons of new

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

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

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

Medical Things.”

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

world. They’ve helped hospitals find compliance to a

raft of regulations that have flowed out of Washington

with a stunning regularity and velocity. And it will keep

attorneys busy working in the space as they help

healthcare organizations thread the needle between quick

information access for healthcare providers and privacy

protections for patients.

“They said in a paperless world everything is going to

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

counsel for Methodist Le Bonheur Healthcare. “But, really,

things were a lot easier when everything was locked

down behind the doors in medical records and you

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

get your records. The accessibility to electronic medical

records is great for healthcare providers, but we’re

constantly having to educate and train people on how to

access it and share it safely.”

Setting the Stage for the Digital Future of Health Care

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

said that within 10 years, every American should have a

personal electronic medical record. Fast forward to 2009.

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

yet. Some larger health systems had dipped a toe into

electronic medical records, but none had taken the full

plunge. Paper records were still the standard.

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

launched the American Recovery and Reinvestment

Act (ARRA), which would become informally called the

“economic stimulus package.” In that package was about

$28 million for organizations in the healthcare industry to

switch completely to computerized patient records.

The president’s order gave these organizations until 2015

to make the switch before the feds began imposing

financial penalties for noncompliance, in a mandate

called the Health Information Technology for Economic

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

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

electronic medical records.

In October 2015, the Centers for Medicare and Medicaid

Services (CMS) proposed revisions to those rules that

gave the healthcare industry until January 2017 to comply

with the third and final stage of the paperless mandate.

The new rules would offer new flexibility and would

make way for an electronic medical system that moved

beyond simple meaningful use, said Dr. Patrick Conway,

the CMS chief medical officer and deputy administrator for

innovation and quality.

But Tennessee Senator Lamar Alexander, a ranking

member of the Senate Health, Education, Labor and

Pensions Committee, criticized the move at the time,

saying the feds were still moving too fast.

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

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

and less than 40 percent of hospitals can comply with the

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

time.

Instead of taking the time to get the stage three rule right, they’ve rushed

ahead — when only 12 percent of doctors and less than 40

percent of hospitals can comply with the program’s

stage two.”

“

15

Since 2009, most hospitals have gotten on the digital

bus. Nearly 97 percent of them had a certified electric

health record system and so did about 80 percent of

doctors’ offices, according to the latest figures from the

Office of the National Coordinator for Health Information

Technology.

Case Study: Methodist’s Digital Journey Still a Balancing Act

If you’ve seen a television medical drama recently, you

know pens and clipboards have largely been replaced

with cell phones and tablets. It’s a day-to-day reality

at hospitals and clinics in the Methodist Le Bonheur

Healthcare system, as physicians use their iPhones or

iPads to check patient records or send text messages and

videos to their colleagues for opinions on patients.

The speed and ease of the technology has many times

led to better, quicker healthcare delivery. But getting there

wasn’t quick, and staying fresh in the digital space isn’t

easy. In fact, it’s a constant balancing act.

Gene Fernandez, Methodist’s chief technology officer,

said the system has been on its digital journey for

quite some time. It’s taken years of research and major

investments by the company to install the technology and

train the system’s staff to use it.

But the hard work is not done. Keeping that system

safe for the millions of pieces of highly sensitive patient

information requires constant vigilance, constant training,

staying on the cutting edge of the industry, and striking a

balance between security and the user experience.

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

friendliness, and security are usually on opposite ends,”

said Steve Crocker, Methodist’s director of information

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

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

Making the magic of technology work in a real

environment and making it work safely is where

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

assistant general counsel, and Crocker, the information

security expert, all have to work together, constantly

balancing patient privacy and access to information.

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

said Hinton. “Doctors want the information now for

patient care, which is our mission. But we have to

leverage that with security and privacy. So, that’s a

constant balancing act. We want to protect people’s

privacy but at the same time, we’ve got to make sure

information is readily available to medical staff and

providers to enable them to provide good care.”

For Hinton, the balancing act means constant training on

technology and data access for Methodist employees.

For Fernandez, it means ensuring medical providers have

easy access to a hospital’s electronic medical record. For

Crocker, that means ensuring texts are sent through an

encrypted channel, using a third-party mobile app.

Information technology has risen so far to the top of

priorities for the huge Memphis healthcare system that

it recently commissioned a board-of-directors-level

committee on information technology, a committee

chaired by FedEx Corp.’s chief information security

officer, Denise Wood.

That committee is focused on cybersecurity, monitoring

the investments made in technology, and making sure

all Methodist providers remain compliant with the Health

Insurance Portability and Accountability Act (HIPAA), one

of the largest legal protections for patient privacy.

HIPAA compliance and staying up-to-date on new

regulations are the largest jobs for Hinton, whose job as

assistant general counsel also makes her the compliance

officer and the privacy officer.

“Those things are very technical, so we have to rely on

Gene (the CTO) and Steve (the information security

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

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

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

really is very technical.”

Methodist’s digital journey is not over. Fernandez said

his team has to constantly test and audit the technology

for failures or improvements. Hinton said her team has

to constantly educate and monitor vendors on HIPAA

compliance. Crocker said his security team works

constantly to create a safer environment so technological

innovation can thrive in and across the Methodist system.

The Internet of (Medical) Things

It’s likely that you know someone who wears a Fitbit, the

small, digital watch that tracks motion and activity. (If you

don’t, consider that the company sold nearly 5 million

of them in third-quarter 2015.) That data is uploaded to

servers housed and protected (in theory at least) by the

company. That information is not currently regulated with

the same scrutiny as patient medical information.

That worries Amy Campbell, director of the Institute for

Health Law & Policy at the University of Memphis School

of Law. She said more needs to be done to protect

consumer privacy while not hampering innovation.

Loretta Hinton (JD ‘93)

16

“We have to think about whether or not the existing

privacy protections apply and have we figured out how

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

said. “By the same token…we need to be careful in

regulating this sector so that we don’t overregulate

or regulate it in ways that have unintended, negative

consequences of…restricting information that could be

helpful to advance individual health or population level

health.”

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

privacy professional, a member of Baker Donelson’s

Privacy and Information Security Team and former

Memphis Law Review business editor, an additional issue

that is unique to wearable technology and health care is

product liability with regard to the reliability of advice or

recommendations generated as a result of the wearable

device.

This sector is certainly not limited to Fitbits, though.

Consumer products of all kinds are getting hooked

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

Thermostats. Collectively, these are all in an innovation

group called the “Internet of Things.” Insulin pumps,

patient beds and heart rate monitors are going digital, too,

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

Information security experts with Symantec wrote in its

2016 forecast last year that regulations of this class of

products “may be forced to catch up to technology in

2016.” Symantec experts also predicted cybercriminals

will also begin to target Apple products, like the wildly

popular Apple Watch, once thought to be more secure

than other brands.

The National Science Foundation is chipping in $10

million to help secure these devices in a project called

Trustworthy Health and Wellness at Dartmouth College.

“Mobile medical applications offer tremendous

opportunities to improve quality and access to care,

reduce costs and improve individual wellness and public

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

these new technologies, whether in the form of software

for smartphones or specialized devices to be worn,

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

are not designed or configured with security and privacy

in mind.”

2015: The Year of the Healthcare Breach

Health care has always been a technology industry. But

digital technology has risen to the top of the healthcare

agenda recently because it does offer a huge business

opportunity and also because it provides a huge business

risk. Again, it’s the promise of quicker, better and less-

costly health care balanced against the potential for the

loss of patient privacy.

That risk was on full display last year. Before 2015 began,

data breaches in the healthcare industry were numerous

enough for some to call it a national epidemic. Even

before the year ended, national media and trade journals

alike dubbed 2015 “The Year of the Healthcare Breach.”

From January to October, almost 100 million protected

health information records were compromised, according

to IBM X-Force Interactive Security Incidents data. By

year’s end, the figure had grown to 112 million records

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

population.

Hackers want that information to sell on the black market.

The market rate for patient information is higher because

the data is richer and offers a more-complete identity to

steal.

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

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

Mobile medical applications offer tremendous

opportunities to improve quality and access to care, reduce costs and improve individual wellness and

public health.”

“

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

change my medical history.”

The cons crooks run with the information has a higher

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

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

notice it immediately. But the lag time on health identity

theft is much longer.

“Depending on the type of wearable technology, the

environment it’s used in, and how it’s connected to a

network, wearable technology could also be a conduit

for a hacker to gain access to sensitive information or

protected health information that is not stored on the

wearable device itself, but rather is stored on a system

accessible from a network that the wearable device is

connected to or has access to,” said Baker Donelson’s

O’Connor. “Likewise, it could be used as a conduit to gain

unauthorized access to a system or other IT infrastructure,

potentially leading to system shutdowns or configuration

changes that could endanger patient safety.”

The average, out-of-pocket loss to a victim of medical

identify theft is about $18,660, according to a 2015 study

by the Poneman Institute, an information security research

agency. Those victims further face ruined credit, lost

insurance coverage, confusion in medical records, higher

premiums and even bad diagnoses if a doctor uses phony

medical information.

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

Each breach can cost a hospital or clinic or doctor’s office

up to $50,000 for each HIPAA violation or up to $1.5

million in a year.

But it should be noted that not all patient records are

lost to hackers. In fact, a 2014 report from information

security firm Bitglass said that only 23 percent of health

Cont’d on pg 30 17

TRUE BLUE INTERVIEW

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

Mayor Strickland invited ML into his office at City Hall to talk about the past, present and future of Memphis and the evolving legal landscape of the city.

What are some qualities or decisions of former Memphis mayors or city

leaders that you’ve learned from and taken to heart?

I have learned much from former leaders of Memphis:

Then State Senator (now Congressman) Steve Cohen —

tenacity (it took 17 years to pass the Tennessee lottery);

Mayor Willie Herenton — the need for decisiveness;

Mayor Dick Hackett — the emphasis on customer

service; Congressman Harold Ford Sr. — the emphasis on

constituent service; school board member Maxine Smith

— steadfastness; Mayor Jim Rout — prioritizing time

with family.

The University of Memphis has been a big part of your life. Can you

explain how you view its significance to the city itself? Specifically, how is the law school important to the

success of Memphis?

The University of Memphis is one of the two most

important entities in the City of Memphis (FedEx is the

other one). The University produces thousands of high-

quality graduates each year that enter our workforce and

contribute so much to our community. It also anchors a

great neighborhood, the University District, which also

happens to be my neighborhood. It provides research and

other contributions to government, private businesses,

and the nonprofit community that are vital to the city’s

success.

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

contributions to Memphis. Most lawyers practicing law in

Memphis graduated from the law school. As a graduate

Mayor Jim Strickland (JD ‘89)

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amenities — but our city is not growing in population or

jobs. Our administration will focus on growing Memphis.

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

reducing crime, cleaning up the blight and litter, paving

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

can better provide the basic core services of government,

combined with the great things going on in the city,

Memphis will explode with growth. I am optimistic about

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

create a better Memphis.

What is your advice for someone that wants to make a difference

in Memphis?

Everyone in Memphis can make a difference. Our city

is large enough to offer many big-city amenities, but

manageable enough to offer volunteer opportunities

that can make big differences. There are numerous

organizations actively seeking volunteers, from cleaning

up litter to helping young people.

19

myself, I am proud that so many of our grads have risen

to the top of their fields at law firms and businesses

throughout the country and government positions,

including the United States House of Representatives.

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

Like many other lawyers practicing in Memphis, in

my practice I came across many of the challenges of

Memphis such as unemployment, blight, and crime,

including domestic violence. This exposure gives me

valuable insight in my new position. We must clean this

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

more attractive for current businesses to stay and expand,

and to recruit new companies to come to town and create

jobs for our citizens. We are pushing for stiffer penalties

for violent criminals, including those guilty of domestic

violence, to deter violence. We need to expand programs

that intervene in the lives of young people, giving them

constructive things to do when they are not in school. We

must be “brilliant at the basics” in the city government to

better deliver core services to our citizens.

How has the legal profession changed since you graduated

from Memphis Law?

In the almost 27 years I have practiced law, I have seen

many changes. Legal research has dramatically changed.

Books and firm libraries have almost disappeared. Online

research has greatly improved; Google-type searches

have replaced connectors, such as “within 5 words of.”

In addition, downtown is no longer the sole office location

for Memphis law firms. Hundreds of lawyers have moved

out east or to other locations throughout the city. Online

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

we are losing the interactions and resulting relationships

with court clerk staff. Most insurance companies have

brought defense counsel in-house hurting some

traditional defense firms, and changes in workers’

compensation and medical malpractice laws have greatly

impacted lawyers and clients.

The one thing that remains true over my years of practice

is that Memphis is a great place to practice law.

How will your administration make its mark on the city and continue the substantial momentum that Memphis

is experiencing at the moment?

There are so many great things going on in Memphis —

continued improvement downtown, dramatic growth in

midtown, great parks in Shelby Farms Park and Overton

Park, college and professional sports, and wonderful

3

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4

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

19

By Ryan JonesArtwork by Jeanne Seagle and Bobby Spillman

Courtroom Sketch Artists An Art From Another Era

20

he work of courtroom artists was thrown into the

national spotlight last August with the sketch of NFL

quarterback Tom Brady during his “Deflategate” trial,

generating controversy and attention across the Internet

and in media outlets throughout the country. The

courtroom sketch artist in this trial, Jane Rosenberg, drew

the ire of the viewing public when her sketches were

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

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

so many people have paid attention to what is widely

considered a dying art in the legal arena.

For years, courtroom sketch artists were traditionally the

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

from an era when drawings in newspapers, TV news

broadcasts, school books and travel publications were

how people caught a glimpse of the world beyond

their own. However, the ranks of courtroom artists

have thinned as technology has evolved and states

have steadily lifted longstanding bans on cameras in

courtrooms.

As courts across the country banned photography in

the early 1950s, news outlets rediscovered courtroom

sketch artists and sought to use their work once again

for the purpose of illustrating courtroom proceedings for

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

cameras and a small number of camcorders began to be

allowed in courtrooms without restrictions. This was only

the case in some state courts, however, with photography

and video still being banned in federal criminal courts

since 1946. The United States Supreme Court stands

by the federal ban. “There’s a concern [among justices]

about the impact of television on the functioning of the

institution,” Chief Justice John Roberts said in 2006.

“We’re going to be very careful before we do anything

that might have an adverse impact.” Justice Stephen

Breyer has also referred to fears that the attention on

televised trials could frighten witnesses and encourage

lawyers to perform for the audience.

Memphis has had its share of prominent trials over the

years, with local artists chronicling the proceedings for our

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

much noticed by people reading and watching the news,

but something significant may still end up being lost, as

videos and photos, no matter how well-done, cannot

replicate the magic and beauty of compressing hours

upon hours of courtroom action into one single drawing

that captures the essence of the day’s events.

T

21

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kay Spalding Robilio was elected as Memphis City Court Clerk.

Randall Womack has been named to the Mid-South Super Lawyers list in the area of Environmental Law.

Frank N. Stockdale Carney was selected for inclusion in The Best Lawyers in America (2016 edition) in the area of employee benefits.

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

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

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

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ALUMNI: SETTING THE BAR

1974

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1996

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23

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

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

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

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

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

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

Thomas R. Greer was recently elected as a member of the American Board of Trial Advocates, which is an invitation-only organization devoted to fostering improvement in the ethical and technical standards of practice in the field of advocacy. Thomas was also selected as a 2015 Mid-South Super Lawyer.

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

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

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

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

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

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

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

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

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

Katy Laster was named a shareholder of Evans Petree PC.

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

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

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

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

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

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

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

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

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

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

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ALUMNI: SETTING THE BAR

24

2011

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

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

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

Rebecca K. Hinds has joined the Litigation Section of Martin, Tate, Morrow & Marston, P.C.

William Terrell has been selected to study internationally this year through the Pegasus Scholarship Trust by the American Inns of Court. Terrell will spend six weeks in London studying the English legal system.

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

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

2525

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

Ohio State Law Journal.

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

An Experimental Assessment,” was published in the University of

Richmond Law Review.

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

second edition published.

Amy CampbellProfessor Campbell authored a chapter entitled “Is there a

therapeutic way to balance community sentiment, student mental

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

in the “Handbook of Community Sentiment”.

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

Confronting Implicit Racial Bias in Uncharged Act Evidence,” will

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

Donna HarknessProfessor Harkness authored a chapter entitled “Bridging

the Caregiving Gap – Does Technology Provide and Ethically

and Legally Viable Answer? A U.S. Perspective,” in the book

“International and Comparative Law on the Rights of Older

Persons.”

Lee Harris Professor Harris’ textbook, “Mastering Corporations and Other

Business Entities,” had its second edition published.

D.R. JonesProfessor Jones’ article, “Commerciality and Fair Use,” was

published in the Wake Forest Journal of Business & Intellectual

Property.

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

Explanation of American Education Disparities,” was published

in the Penn State Law Review.

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

the Law and Economics of Propertization in American

Trademark Law,” was accepted for publication in the Cardozo

Arts & Entertainment Law Journal.

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

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

The Commercial Appeal on September 6, 2015. Dean Letsou

also participated as a panelist in “Journey to Justice, The Role

of Law in Effecting Social Change, as Examined through the

Legacy of Constance Baker Motley, Advocate and Jurist” at

the National Civil Rights Museum on November 12, 2015.

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

Bearman Sr. American Inn of Court.

Boris MamlyukProfessor Mamlyuk’s book chapter, “Post-socialist property

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

Comparative Property Law.”

He also has another forthcoming chapter entitled,

“Decolonization as a Cold War Imperative: Early Soviet

International Law as a Precursor to Bandung,” in “The Global

South, and International Law: Critical Pasts and Pending

Futures.”

Professor Mamyluk’s article, “The Ukraine Crisis, Cold War II,

and International Law,” was published in the German Law

Journal.

IN THESE HALLS: FACULTY ACCOMPLISHMENTS

26

Andrew McClurgProfessor McClurg’s textbook, “Guns and the Law: Cases,

Problems and Explanation,” will be published in 2016.

Professor McClurg’s article, “The Second Amendment Right to be

Negligent,” was accepted for publication in the Florida Law Review.

He also had his article, “In Search of the Golden Mean in the Gun

Debate,” published in the Howard Law Journal.

Steven MulroyProfessor Mulroy had an adapted version of his Case Western

Reserve Law Review article, “Fourth Amendment Whack-a-Mole:

The Surprising Persistence of the Constitutionally Problematic 48-

Hour Holds,” published online by Case Text.

John NewmanProfessor Newman’s article, “Antitrust in Zero-Price Markets:

Foundations,” was published in the University of Pennsylvania Law

Review.

Daniel SchaffzinProfessor Schaffzin’s book chapter, “Delivering Effective Education

in Externship Programs,” was published in the textbook “Building

on Best Practices and Carnegie’s Educating Lawyers: Legal

Education in a Changing World.”

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

Unavailability of Same-Sex Marital Privileges Infringes the Rights

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

publication in the University of Kansas Law Review.

Eugene ShapiroProfessor Shapiro’s article, “Governmental Acquiescence in Private

Party Searches: The State Action Inquiry and Lessons from the

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

Law Journal.

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

to Law Students: Understanding the ‘Self’ as ‘Other’,” will be

published in the Florida Coastal Law Review.

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

Professor Shapiro has been an outstanding teacher to thousands

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

faculty at the Cecil C. Humphreys School of Law in 1976, after

serving as associate appellate counsel for the Legal Aid Society in

New York City and as an attorney for the National Labor Relations

Board.

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

express our deepest gratitude to Professor Shapiro for all he has

done for this law school and for our students.

PROFESSOR EUGENE SHAPIRO RETIREMENT

THANK YOU PROFESSOR SHAPIRO!

27

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

Price Markets: Foundations,” was recently published in the

University of Pennsylvania Law Review. In the short article

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

in that article to help the reader understand that “free”

online products are not really and truly “free,” and how

that could potentially harm our society and marketplace.

We are living in the future. Ours is a world where vast

libraries of information and content are available at

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

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

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

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

Just a few decades ago, most of these products did not

even exist. A few, like recorded music, did — but only

a billionaire could have afforded a library the size of

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

access virtually unlimited amounts of music, film, books

and news articles, all without paying a single cent.

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

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

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

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

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

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

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

also takes this position. Anderson argues that the Internet

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

which is how all these wonderful products can flow to

consumers free of charge.

In more scholarly circles, the same attitude prevailed.

Prominent judge and antitrust scholar Robert Bork, for

example, contended shortly before he passed away that

search engines cannot be liable under antitrust laws

because they are “free to consumers.” Joshua Wright, a

former commissioner at the Federal Trade Commission,

has similarly argued that most online businesses “give

away their products for free.”

But this whole idea of for-profit businesses giving

consumers products for “free” ought to seem a little odd.

When it comes to the marketplace, as Milton Friedman

famously quipped, “There is no free lunch.” The Internet

did not destroy firms’ profit motive. It also did not

eliminate the cost of making products — try recreating the

“Street View” feature of Google Maps without any funding

for fleets of cars, cameras and drivers. Companies like

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

business of giving away their products for free.

Consumers pay for these “free” products not with

money, but with their attention and personal information.

Each time you log in to Facebook or check Gmail, you

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

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

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

thinking about buying a new sofa, or suffer from seasonal

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

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

recognize them as such.

Why this failure? Two reasons.

First, modern economics tends to focus heavily on prices.

That dependence may explain how even experts like Bork

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

comes to products that lack obvious prices.

Second, consumers tend to drastically underestimate

how effective advertising is at diverting our attention. One

study showed that a majority of Internet users believe

online ads are “almost completely ineffective”. This belief

is incorrect. Follow-on experiments showed that ads had

substantial power both to persuade and distract users.

It seems we delude ourselves into believing that we are

immune to ads, which causes us to discount any potential

attention costs. And even though consumers say they

strongly oppose giving out their personal information,

actual behavior reveals a much different picture. In

another study, individuals stated they were willing to give

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

several weeks later, they disclosed almost twice that

number.

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

“free” markets is no different than that of traditional

markets. In both, sellers transfer products to buyers in

exchange for something of value. Antitrust laws are meant

to safeguard marketplace competition, but doing so

effectively requires protecting all markets, not just those

with obvious prices.

Broadcast radio provides a telling example of the harm

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

Congress passed the Telecommunications Act, which

removed a longstanding limit on how many stations

a single entity can own. A massive wave of industry

consolidation followed. Antitrust enforcement agencies

closely analyzed whether these mergers would result

in higher prices to advertisers. But what the agencies

neglected to look for was potential harm to listeners. If

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

raise attention costs in the form of more advertisements.

Unsurprisingly, in many regions, listeners have ended up

paying more in exchange for a lower-quality product.

Recognizing that many “free” products are not actually

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

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

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

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

for their costs.

WHAT IS THE REAL

CO$T OF FREE?By Professor John Newman

28

in the form of digital currency. This network will connect a

number of microfinance institutions that provide bank-like

services, such as loans, to people who don’t have bank

access. It will allow Bitcoin and digital currencies to move

between those institutions and give people a way to

easily send and receive money.

HOW IS IT REGULATED?

“The legal controversy around Bitcoin seems to be driven

largely by its relative anonymity – it provides a uniform

means of exchange that can’t be easily tracked by

government,” according to Skrmetti. “The uniformity lets

Bitcoin function as a currency, but a currency that doesn’t

move through the channels that criminal investigators

and tax agencies can readily access. Both the inherent

difficulty of tying cryptocurrency transactions to real

people and the government’s inexperience in the field

make Bitcoin attractive for criminals, though of course it

also has plenty of legitimate uses.”

It should then come as no surprise that regulators have

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

the U.S. Internal Revenue Service proclaimed that Bitcoins

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

Exchange Commission, the body that oversees the sale of

stocks, bonds and other securities, warned the public that

Bitcoin users may be targeted for fraud in risky investment

schemes.

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

according to cyberlaw expert Skrmetti. “Direct regulation

of Bitcoin transactions will be tough because various

proxy technologies allow users to effectively anonymize

their web use. If the government is already surveilling the

Bitcoin user, they might be able to see the transaction

happening. But if the government is just generally

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

no way of reliably knowing whether the parties to a given

Bitcoin transaction are in their country.”

Making matters more difficult, the main federal agencies

monitoring digital currencies (the SEC, CFTC, FinCEN and

IRS) all have their own interpretations of virtual currencies

and how or whether they should be regulated. The IRS

defines a virtual currency as being “treated as property

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

apply to property transactions apply to transactions using

virtual currency.” FinCEN looks at Bitcoin and virtual

currencies as similar to traditional currency, subjecting

exchangers of digital currency to the same regulations as

money services businesses. The CFTC recently ruled that

“Bitcoin and other virtual currencies are properly defined

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

Bitcoin-based products as securities.

The states themselves have begun to regulate emerging

digital currencies as well, with a variety of new regulatory

frameworks, licenses and legislation.

New York

In May of 2015, New York State’s Department of Financial

Services granted its first official business license for a

Bitcoin exchange, itBit. This allows that exchange to

legally attract customers from across the country, but at

the same time makes itBit the first fully regulated digital

currency exchange in the United States.

New Jersey

New York’s neighbor is following a similar track and giving

Bitcoin a regulatory framework. Not only is New Jersey

attempting to regulate digital currencies though, it is

also attempting to offer tax breaks for companies that

exchange Bitcoins, a measure that could encourage many

more businesses to accept the digital currency.

North Carolina

Already known as a banking hub, North Carolina appears

to be positioning itself as a leader for cryptocurrency

regulation. But not everyone will be regulated.

Cont’d from pg 13

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

29

30

information was stolen by hackers that year. Loss or theft

of, say, a laptop or a mobile phone made up more about

68 percent of information breach cases.

In 2011, Massachusetts General settled a $1 million suit

with the U.S. Department of Health & Human Services

(HHS) after a hospital employee accidentally left a work

folder containing 192 medical records on the subway. In

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

HIPAA verdict upheld against Walgreen Co. after a store

pharmacist shared the private patient information of a

Walgreens customer who once dated the pharmacist’s

husband.

Lawsuits can be even more costly. A class action suit

was brought against the U.S. Department of Defense’s

TRICARE health insurance program in 2011. A contractor

lost backup computer tapes from an electronic health

record, which contained information on about 4.9 million

individuals.

The lawsuit sought $4.9 billion from the Defense

Department. But U.S. District Judge James Boasberg

dismissed most of the majority of the suit in 2014 as

most of the patient records were not used to defraud

the patients.

Cont’d from pg 17

Telemedicine, or telehealth, is the

basic term used for a patient seeing a doctor remotely via phone or

videoconference.According to CoinDesk, select Bitcoin and blockchain-

related businesses are entitled to exempt status. Joining

them are businesses who take part in nonfinancial

blockchain services, so those likely integrating blockchain

technology merely for record-keeping practices or anything

similar will be able to escape the state’s hand.

The North Carolina Office of the Commissioner of

Banks and the Chamber of Digital Commerce based in

Washington, D.C. have been working together to allow

for such exemptions, in an attempt to avoid problems

witnessed in New York and other regulation-heavy states.

North Carolina also does not require digital currency

businesses to obtain special licenses to operate, unlike

other states.

Other states

The international Bitcoin exchange that joined the U.S.

market in April, announced that it was unable to work with

businesses or consumers in the following states because

they required additional money transmitter licenses for

Bitcoin companies. These states include: Alabama, Alaska,

Arizona, Arkansas, Colorado, Florida, Georgia, Guam,

Idaho, Iowa, Kansas, Louisiana, Maryland, Michigan,

Mississippi, Nebraska, New Hampshire, North Dakota,

Ohio, Oregon, Tennessee, Texas, Vermont, Virginia and

Washington. However, it seems likely that more states

will adopt Bitcoin legislation in order to provide regulatory

authority and also to create more clarity for Bitcoin

business in those states.

Internationally

Globally, the European Commission is expected to

release its own regulations by 2017 to regulate Bitcoins

in European nations. According to Money.com,

“Governments are concerned about taxation and their

lack of control over the currency.”

China has a partial ban on the digital currency, and

Thailand and Vietnam do not recognize Bitcoin as an

acceptable form of currency. India has also reportedly

looked into banning Bitcoin, but hasn’t moved

toward doing so. Bitcoin is also currently banned in

Bangladesh, Bolivia, Ecuador, Iceland and Kyrgyzstan.

However, Russian authorities recently announced they

were lifting the country’s ban on Bitcoin, for now.

According to Skrmetti, Bitcoin becomes vulnerable to

government intervention at the nexus of Bitcoin and

the real world. “Many Bitcoin exchanges involve people

either sending or receiving goods or converting Bitcoins

to traditional currency,” says Skrmetti. “A sufficiently

nosy government can take a look at those real-world

activities and potentially tie them to particular bitcoins,

though you’d expect the real criminals will develop

methods to make investigators’ lives difficult. Clamping

down on Bitcoin use at the real-world level would not

altogether eliminate Bitcoin, since it could still be used

for purely online transactions or by people capable of

laundering it. But tight restrictions would make it a lot

harder for most people to use Bitcoin in most of the

circumstances they’d want to use it, which would in

turn drive down its value.”

THE FUTURE OF BITCOIN

Despite persistent rumors of its demise as a virtual

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

Venture capital firms had invested over $1 billion in

Bitcoin-related startups by the end of 2015, according

to Bloomberg. These investors are betting that

Bitcoin adoption will continue to grow with better

infrastructure.

“Even in areas where the currency itself is trustworthy,

people may still distrust the financial system

surrounding it,” said Professor Newman. “In Memphis,

over 90,000 households remain unbanked. Bitcoin

could find its niche among this population, but only

if and when it advances enough that anyone with a

smartphone can use Bitcoin to pay for groceries at

Kroger, wire funds to a relative, or withdraw money at

an ATM.”

Many Bitcoin exchanges involve

people either sending or receiving goods or

converting Bitcoins to traditional currency.”

“

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It further defined patient privacy rights at the time as

Boasberg said that most courts have already “agreed

that the mere loss of data — without evidence that (the

information) has been either viewed or misused — does

not constitute an injury sufficient to confer standing.”

Data breaches got so bad in 2015 that the HHS jumped

in, publishing its list of data breaches that affected more

than 500 patient records at a time. The list quickly

became known in the healthcare industry at HHS’s

“wall of shame.” That list includes 1,462 breaches from

network hacks, lost paper records, phishing scams or lost

mobile devices.

But the federal government is working toward a

fix for the problem. In mid-December, President

Obama signed a $1.1 trillion spending bill that

included a final version of the Cybersecurity Information

Sharing Act. For health care, the bill mandated a

report from HHS on it and the healthcare industry’s

preparedness for cybersecurity attacks. The bill also

mandated the formation of a healthcare cybersecurity

task force to analyze the problem.

In the meantime, information security group Symantec

predicted cybersecurity will be an even bigger and

broader problem for the healthcare industry this year.

FDA Regulation and Cybersecurity

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

a cybersecurity alert to healthcare facilities using certain

infusion pumps made by a company known as Hospira.

In an article for Law360, Bill O’Connor (JD ’12) explains

that certain security vulnerabilities in the Hospira system

could allow unauthorized access to the device. He

explains that the Hospira system communicates with a

healthcare facility’s network and information systems to

control dosage delivery and according to the FDA alert,

an unauthorized user could potentially gain access to

the device remotely and alter dosage amounts. This

marks the first time that the FDA has recommended

discontinuing use of a specific medical device, based on

cybersecurity issues, according to O’Connor.

This first-time alert from the FDA shows how seriously the

organization considers cybersecurity and addresses the

vulnerabilities of digital healthcare technology. Healthcare

facilities and providers should also take the FDA’s warning

seriously because a medical device cyberattack that

results in harm to a patient would almost certainly cause

reputational harm and have adverse legal and financial

consequences.

“Medical device manufacturers should take the FDA’s

warning seriously,” said O’Connor. “They should safeguard

against cybersecurity vulnerabilities in future products by

carefully considering possible cybersecurity risks while

designing products and having a plan to manage system

or software updates for those products.”

Telemedicine a “Godsend” in Tennessee

Telemedicine, or telehealth, is the basic term used

for a patient seeing a doctor remotely via phone or

videoconference. Its use has exploded across the country,

especially in rural and remote locations.

Dr. Bill Frist, a former two-term Senator representing

Tennessee, wrote in a Tennessean op-ed last year that

while the practice is in its “infancy” here, it can save lives,

and lots of money as patients use it — not the emergency

room — as their primary portal to health care.

In 2014, Tennessee legislators passed a bill requiring

commercial insurers to cover telemedicine services just

like they would traditional in-office visits. Tennessee

became the 21st state to require this when the mandate

began in October 2015.

The legislation was sponsored in the Tennessee Senate

by Sen. Mike Bell, who said a telemedicine clinic was

opened in an elementary school in his district that

was home to lower-income students. He told a Senate

committee that the clinic had been a “godsend.”

Still Frist said new laws should create medical parity

between remote and on-site visits. A bill to that effect is

now before the Tennessee General Assembly. Also, state

legislators will review rules to strengthen protections for

telemedicine providers and eliminate a requirement that a

telemedicine provider be physically in a hospital or some

other qualified setting to get insurance reimbursement.

Some (Somewhat) Bright Spots on the Horizon

Healthcare technology is certainly not all doom and

gloom (even though stormy weather does worry some

who watch health tech’s ever-growing horizon).

In the future, patients will probably see more doctors

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

have access to more gadgets than ever to tell them if

they’re getting enough exercise, enough insulin or enough

sleep. And law and new regulations (especially on privacy

and patient confidentiality) will closely follow the light of

health care’s new day.

Bill O’Connor (JD ‘12)

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STRATEGIC PLAN HOW WE WILL MEASURE OUR SUCCESS

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

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

University of Memphis Law School.”

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

32

INITIATIVE FOUR:FACULTY RECRUITMENT, RETENTION AND DEVELOPMENT

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

• Number of public engagement activities by faculty members

• Comparison of faculty diversity statistics with past law school levels as well as with peer institutions

• Number of faculty honorifics and chairs

• Number of media citations in academic outlets of national reputation

• Level of funding for faculty travel

• Number of conferences hosted and visits by scholars from other academic institutions

INITIATIVE FIVE:STUDENT RECRUITMENT AND SUCCESS

• Level of student body diversity

• Number of new scholarships and level of funding for existing scholarships

• Number of students in mentoring programs

• Level of increase in academic profile of entering classes

• Level of employment for graduates

INITIATIVE SIX:INFRASTRUCTURE AND ADMINISTRATIVE RESOURCES

• Level of investment in website and technology

• Level of investment in print and digital marketing materials

• Level of alumni involvement in the activities of the law school

• Percentage of alumni participation in the annual fund

• Level of donor support

INITIATIVE ONE: COMMUNITY ENGAGEMENT

• Number of externship and employment opportunities for students

• Number of collaborative programs with University of Memphis departments and schools

• Number of programs and events hosted at the law school by the legal and governmental communities

• Number of Memphis-related institutes and programs

• Establishment of Masters of Laws and Certificate programs

• Establishment of additional institutes and programs

INITIATIVE TWO:ACADEMIC PROGRAMS AND CURRICULUM

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

• Number of new writing-orientated courses for second and third-year law students

• Number of new course offerings focusing on the business and operation of a law practice

• Successful creation of career portfolios for students

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

INITIATIVE THREE:EXPERIENTIAL KNOWLEDGE AND PROFESSIONAL SKILLS

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

• Number of available spaces in clinics and externships

• Level of expansion in experiential learning curriculum

• Number of simulation and professional skills courses

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

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

University of Memphis Law School.”

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

1 North Front Street Memphis, TN 38103-2189

PRESORTED Non-Profit Org

U.S. POSTAGE PAIDMEMPHIS, TN

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