Apple Pay, Bitcoin, and Consumers: The ABCs of Future Public Payments Law

Mark Edwin Burge

Volume 67, Issue 6, 1493-550

As technology rolls out ongoing and competing streams of payments innovation, exemplified by Apple Pay (mobile payments) and Bitcoin (cryptocurrency), the law governing these payments appears hopelessly behind the curve. The patchwork of state, federal, and private legal rules seems more worthy of condemnation than emulation. This Article argues, however, that the legal and market developments of the last several decades in payment systems provide compelling evidence of the most realistic and socially beneficial future for payments law. The paradigm of a comprehensive public law regulatory scheme for payment systemsexemplified by Articles 3 and 4 of the Uniform Commercial Codehas faded in relevance, while federal law has grown in a specialized consumer protection role. Meanwhile, private contract law has expanded to fill gaps where payment technology has exceeded the scope of public law.

The evidence of the successes and failures of payments law in the face of rapid technological development shows that the field is not best governed by comprehensive public regulation on the Uniform Commercial Code model, but that public law still has an importantalbeit narrowerrole for the future. The most beneficial paradigm for governance of payment systems is a division between (1) private law handling systemic matters of operation, and (2) public law focused on protecting payment system end-users from oppression, fraud, and mistake. This demarcation of lawmaking responsibilities has the greatest track record of success and is the most capable of dealing with a foreseeable future of unforeseeable innovations.

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An “Act of God”? Rethinking Contractual Impracticability in an Era of Anthropogenic Climate Change

Myanna Dellinger

Volume 67, Issue 6, 1551-620

“Extreme” weather has become the new normal. Previously considered to be inexplicable and unpredictable “acts of God,” such weather can no longer reasonably be said to be so. They are acts of man. The current doctrine of contractual impracticability rests on the notion that a party may be exculpated from contractual liability if supervening events render a performance impracticable, unless they have implicitly or explicitly assumed the risk. To a large extent, courts still consider the foreseeability of the event and an a party’s ability to control it. However, it makes little logical or legal sense to continue to allow parties to escape liability for weather events that are in fact highly foreseeable given today’s knowledge about the causes and effects of severe weather. Some parties may even be found to have had some “control” of the development of the weather event and thus not be able to avoid liability.

This Article proposes taking a new, hard look at the doctrine of impracticability and the closely related doctrine of frustration of purpose. By modernizing these doctrines to reflect current on-the-ground reality, the judiciary may further help instigate a broader awareness of the underlying problem and need for corrective action against climate change at both the private and governance scales. Meanwhile, a more equitable risk-sharing framework should be implemented where contracting parties have failed to reach a sufficiently detailed antecedent agreement on the issue.

The law is never static. It must reflect real world phenomena. Climate change is a highly complex problem requiring attention and legal solutions for many problems including contractual performance liability. The general public is often said to have lost faith in the judiciary. Given this perception, courts could regain some of that faith in the context of events for which no “God,” other supernatural power, or even nature can be blamed.

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Preventing Opioid Misuse with Prescription Drug Monitoring Programs: A Framework for Evaluating the Success of State Public Health Laws

Rebecca L. Haffajee

Volume 67, Issue 6, 1621-94

he United States is in the midst of a prescription opioid overdose and misuse epidemic. Although many factors have contributed to the escalation of prescription painkiller misuse, it parallels increases in the supply and prescribing of opioids. Prominent state-level regulatory interventions, such as the establishment of prescription drug monitoring programs (“PDMPs”), recognize prescribers as opioid gatekeepers. Prescribers, who are uniquely situated to distinguish between appropriate use and misuse of opioids, are a natural target for regulation. PDMPs also target patients who seek to obtain high volumes of prescription opioids for illicit purposes.

PDMP policies are widespread but heterogeneous, largely uninformed by robust evidence or a systematic assessment of best practices. Whether these programs successfully reduce opioid misuse and overdoses remains unclear. As well, PDMPs present a number of legal and ethical challenges that, along with intervention effectiveness, warrant careful policymaker consideration going forward. This Article articulates and synthesizes for the first time key criteria intended to assist state regulators in dynamically evaluating and justifying PDMPs and other public health laws. The criteria focus on the legality of the policy, approaches to measure its effectiveness, and normative considerations that should be factored into good laws. Such a framework is crucial for policymakers given the complexities and magnitude of this public health challenge, the rich arsenal of policy options from which to choose, and the slow and uncertain progress in combating prescription painkiller misuse. Concluding recommendations include implementing PDMPs with the following features: timely and complete data, strong incentives for prescriber participation, user guidelines and education, integration into clinical work flow, and robust confidentiality and privacy protections. Ongoing evaluation of programs to identify features appropriate for retention and replication is also crucial if PDMPs are to fulfill their potential to curb prescription opioid overdose and misuse.

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Miranda Overseas: The Law of Coerced Confessions Abroad

David Keenan

Volume 67, Issue 6, 1695-732

In recent years, Article III courts have become the preferred venue for the U.S. government to try terrorism suspects captured abroad. Many liberals have welcomed this development, characterizing it as a proper extension of American rule of law principles to the so-called “War on Terror.” But while many have celebrated the marginalization of the military tribunal system, few have directly acknowledged its potential costs.

This Article examines one of those costs: Reduced procedural safeguards for Article III defendants against statements procured through coercive interrogation techniques. As courts have repeatedly recognized, the core purpose of the Fifth Amendment’s Self-Incrimination Clause is to ensure that the accused is not compelled to testify against himself in a criminal proceeding. More controversially, Miranda warnings give effect to that purpose by requiring that any statements admitted into evidence be the product of a suspect’s voluntary and informed choice.

However, where matters of national security are implicated, there is a danger that prosecutions of extraterritorial crimes will cause our domestic courts to bend or abandon traditional rules of American criminal procedure. That is particularly true with respect to protections against self-incrimination. Through a comparison of current legal doctrine with the Supreme Court’s pre-incorporation jurisprudence, this Article argues that courts should be more, not less, vigilant in their review of confessions obtained abroad, especially by regimes that are known to engage in torture. In practice, however, the opposite has occurred. Foreign interrogation practices are subject to far fewer constraints than domestic ones. That realization ought to give some pause to those who tout the supposed virtues of our criminal justice system.

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California Charter School Teachers: Flexibility in the Classroom, Vulnerability as an Employee

Jennifer Hom Chen

Volume 67, Issue 6, 1733-68

Since the passage of the Charter Schools Act of 1992, charter schools have been hailed for achieving better results for students compared to traditional public schools in California. In particular, charter schools are touted for their ability to serve the needs of low-income students in urban areas. Proponents also assert that charter schools present teachers with the opportunity to work in a more flexible environment, where they allegedly enjoy greater flexibility and control over their instructional and curricular decisions, giving them the ability to innovate and experiment with new teaching pedagogy to meet the unique needs of their students. However, there is little discussion on the drawbacks that teachers face while teaching in this “increased flexibility” employment regime. Specifically, charter school teachers are deprived of statutory protections against arbitrary disciplinary decisions.

This Note explores various legal routes that charter school teachers may navigate to protect themselves from arbitrary disciplinary and termination decisions. In particular, this Note examines various statutory and constitutional sources of protection, at both the state and federal level, and concludes that California due process provides the most promising opportunity for attaining protection from arbitrary disciplinary decisions. However, several unresolved ambiguities within California due process jurisprudence undermine the prospect of its ability to effectively shield teachers from uninformed or erroneous disciplinary decisions.

This Note’s conclusion provides for an alternative legal framework that would better balance charter school teachers’ need to be respected and free from completely arbitrary disciplinary actions, with the charter schools’ need to flexibly and efficiently make staffing decisions. Indeed, charter schools must be able to swiftly remove teachers who cannot meet the needs of their students due to their incompetence, unprofessionalism, or other faults. But at the same time, as professional educators and individuals as invested in their students as their own careers, charter school teachers should not be subject to the unfettered whim of their administrators.

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Simplicity v. Reality in the Workplace: Balancing the Aims of Vance v. Ball State University and the Fair Employment Protection Act

Elizabeth Lee

Volume 67, Issue 6, 1769-804

Under Title VII of the Civil Rights Act of 1964, an employer can be held liable for harassment or discrimination by a supervisor. In 2013, in Vance v. Ball State University, the Supreme Court narrowed the definition of supervisor, limiting victims’ ability to prevail on vicarious liability claims. In response, Congress proposed the Fair Employment Protection Act (“FEPA”), which sought a return to the broader, pre-Vance definition of supervisor. While Congress has been successful in overriding decisions inconsistent with Title VII’s aims in other contexts, FEPA did not gain enough momentum and eventually failed. As a result, the Vance decision stands, posing an obstacle to many employees whose harassers were not supervisors, but still controlled nearly every aspect of their daily work.

Arguing that neither the pre- nor the post-Vance definition of supervisor fully recognizes workplace realities, this Note proposes a tiered liability structure based on the actual workplace dynamic between harasser and victim. This broader structure reaches harassment by those with the apparent authority to take tangible employment actions. This additional category is important because, if an employee is not aware of a superior’s authority or has reason to believe that her harasser can fire or demote her, it does not matter whether the harasser actually has the authority to do so. However, if employers have exercised reasonable care in preventing or correcting harassment, this structure provides for an affirmative defense against vicarious liability. Further, the structure applies a negligence standard to harassment by coworkers or those who are clearly day-to-day supervisors.

As the workplace continues to take on new forms, this structure would allow employers to minimize liability through clear employee structuring and proper training; victims to seek redress through the category that most aptly reflects their harassers’ authority over them; and courts to more accurately evaluate supervisory status and liability. In effect, this structure can improve efficiency and accuracy throughout the litigation process.

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Editing Embryos: Considering Restrictions on Genetically Engineering Humans

Anna Zaret

Volume 67, Issue 6, 1805-40

In April 2015, scientists used a new genetic engineering tool known as CRISPR to edit the genes of a human embryo for the first time. CRISPR has made gene editing cheaper, more efficient, and more accurate than ever before. These advances in technology indicate that in the near future, technology will enable the genes of embryos to be edited, leading to the birth of the first “genetically modified human.” This Note explores the potential benefits and risks of editing embryos for reproductive purposes, and problematizes the lack of meaningful public regulation or deliberation in the United States on editing embryos. Given this risk of misuse, the United States needs to democratically develop regulations that ensure that the free market is not the only constraint on the practice of genetically modifying embryos.

In order to demonstrate these points, this Note evaluates the potential beneficial uses for editing embryos, and weighs those benefits against the potential dangers of editing embryos. In discussing the dangers, it discusses individual health and safety risks, as well as societal risks, including the possibility that embryo editing facilitates a new type of eugenics. After evaluating the promises and perils of edited embryos, it discusses the lack of regulatory oversight of editing embryos in the United States, as compared to other technologically advanced countries. Given the lack of limits on genetically modifying embryos in the United States, and the dangers that editing embryos pose to individuals and society, thoughtful public policy discussion on how to regulate this technology is needed. This Note proposes several recommendations for how the law can help facilitate democratic discussion about whether, or under what circumstances, editing embryos should be permitted. Finally, this Note addresses two arguments that may be raised against regulation, and analyzes why neither of these arguments provide a strong reason to reject regulation

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Symposium

Advancing Equal Access to Justice: Barriers, Dilemmas, and Prospects

Hon. Tani G. Cantil-Sakauye

Volume 67, Issue 5, 1181-90

Keynote Address: University of California Hastings College of the Law, November 12, 2015

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How to Regulate Legal Services to Promote Access, Innovation, and the Quality of Lawyering

Gillian K. Hadfield and Deborah L. Rhode

Volume 67, Issue 5, 1191-224

Scholars and critics have for decades advocated change in the professional regulation of legal services markets in order to solve the ever-widening gap in access to justice. One of the central obstacles to change has been concern about the impact of opening legal markets to new practitioners and business models on central professional values such as competence, loyalty, and independence. This Article argues that good regulatory solutions are available to ensure that more open and flexible professional models—ones that allow the practice of law by alternative providers and business structures—deliver high quality, lower cost, greater innovation, and more access to those currently excluded from our justice systems. Part I explores the rationale for regulating the legal services market, and argues that oversight structures should be more responsive to differences in the risks that consumers face in various legal contexts. Part II surveys regulatory options: prescriptive, performance based, management based, and competitive or meta-regulation. Part III reviews the promising strategies that the United Kingdom has recently pioneered to promote access, innovation, and quality. Part IV analyzes regulatory options for the United States and the applicability of U.K. approaches in this country. Attention also focuses on the contributions and limitations of Washington’s recent program to recognize limited license legal technicians. We conclude with proposals for more effective national regulatory models.

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Lifting the “American Exceptionalism” Curtain: Options and Lessons from Abroad

Earl Johnson Jr.

Volume 67, Issue 5, 1225-64

Contrary to its public rhetoric promising “justice for all” and “equal justice under law,” access to civil justice in the United States is “exceptional” only in a negative sense. The Rule of Law Index ranks our nation next to last among the world’s thirty-one “richest” countries. A major reason for this is that most of our fellow industrial democracies have a right to counsel in civil cases and invest from three times to ten times more than the United States on civil legal aid. Beyond these differences, the United States has much to learn from research and other developments in foreign countries. Studies in England about how poor and moderate income deal with their justiciable problems suggest that unmet “effective demand” for lawyer services is substantially less than unmet “legal needs” recorded in legal needs studies—because even with a right to counsel many people instead resolved their problems in other ways. A study in Canada found that those in the upper income quartile spent 167 times more than those in the bottom quartile resolving their legal problems, even though their problems often were less disruptive than those the bottom quartile confronted. A survey of past and present innovations covers the following: (1) Belgium’s problematic system that encourages individual lawyers to provide as much representation as they can while at the same time limiting what the government will pay out for the total amount of legal services rendered each year; (2) Dutch “lokets,”a nationwide network of offices where people can receive advice and brief assistance from a paralegal staff; (3) Dutch “Rechtwijzer 1.0 and 2.0,” online dispute assistance and online dispute resolution; (4) English “McKenzie friends” which allows nonlawyers to accompany unrepresented litigants to the courtroom and render limited assistance; and (5) partially subsidized lawyers for the lower middle classes and legal expense insurance for the middle classes found in several European countries.

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Bridging the Justice Gap in Family Law: Repurposing Federal IV-D Funding to Expand Community-Based Legal and Social Services for Parents

Stacy Brustin and Lisa Martin

Volume 67, Issue 5, 1265-98

Parents in family court overwhelmingly proceed pro se; however, in child support courtrooms, government attorneys representing the state child support agency frequently play a pivotal role. These attorneys represent the state’s ostensible interests in ensuring that children are financially supported and in preventing welfare dependence; they do not represent individual parents. The outcomes of child support proceedings have profound, long-term constitutional and financial implications for parents, yet litigants rarely understand their rights or the role of the government.

Originally, the goal of state child support enforcement efforts was to recapture the costs of welfare expenditures. In 1990, two-thirds of cases involved families receiving public assistance. However, this number has declined dramatically and public assistance cases constitute only fourteen percent of the states’ caseloads. Recognizing that cost recapture is no longer a sustainable mission, the federal program administering the funding of state support agencies has attempted to rebrand the mission to one promoting shared parenting. Although well-intentioned, this shift in mission has led to proposals that would further increase government involvement in private family law matters and threaten due process for parents determining whether and how to share parenting responsibilities.

Rather than enlarging the government child support apparatus, it is time to reevaluate the role of the state and devise new mechanisms for ensuring effective family dispute resolution. This Article proposes that state child support agencies focus on areas in which the government has a clear state interest and specialized capability, for example, identification of income and assets; collection and distribution of child support payments; and administrative enforcement. Rather than continuing to fund state cadres of child support enforcement attorneys and expand their involvement in private family law disputes, the Article suggests that Congress and state legislatures redirect funding to community-based legal and social services organizations that can provide expertise, neutrality, and a range of assistance in custody, parental access, and child support matters involving low-income families.

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From Victims to Litigants

Elizabeth L. MacDowell

Volume 67, Issue 5, 1299-330

This Article reports findings from an ethnographic study of self-help programs in two western states. The study investigated how self-help assistance provided by partnerships between courts and nongovernmental organizations implicates advocacy and access to justice for domestic violence survivors. The primary finding is that self-help programs may inadvertently work to curtail, rather than expand, advocacy resources. Furthermore, problems identified with self-help service delivery and negative impacts on advocacy systems may be explained by the structure of work within self-help programs and the nature of partnerships to provide self-help services. The Author uncovers previously unseen impacts of self-help programs on survivors and on the resources to help them. She concludes with a discussion of the implications for future research directions and describes what can be done now to improve self-help services for survivors.

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