Memphis Law : Fall 2016 by University of Memphis

MEMPHIS LAW MAGAZINE | FALL 2016 A publication of the University of Memphis Cecil C. Humphreys School of Law

Fall 2016 | Issue 6

Dean Peter V. Letsou

Executive Editor Ryan Jones

Contributing Writers Demetria Frank Ryan Jones Lurene Kelley Daniel Kiel Toby Sells

Photography Rhonda Cosentino Ryan Jones

Art Direction and Design Archer Malmo

Published By The University of Memphis Cecil C. Humphreys School of Law 1 North Front Street Memphis, TN 38103 (901) 678-2421 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 Executive Editor, Ryan Jones at rjones1@memphis.edu. The University of Memphis does not discriminate against students, employees, or applicants for admission or employment on the basis of race, color, religion, creed, national origin, sex, sexual orientation, gender identity/expression, disability, age, status as a protected veteran, genetic information, or any other legally protected class with respect to all employment, programs and activities sponsored by the University of Memphis. The following person has been designated to handle inquiries regarding non-discrimination policies: Michael Washington, Director for Institutional Equity, mswshng1@memphis. edu, 156 Administration Building, 901.678.2799. The University of Memphis policy on nondiscrimination can be found at http://policies. memphis.edu/UM1381.htm. UOM395-FY1617/6M Hot Graphics

CONTENTS

The Promise of Partnership

A Look at the Daily Fantasy Sports Betting Industry

Dean’s Letter

News + Events

With Great Power Comes Great Responsibility The Dual Roles of Public Education By Professor Daniel Kiel

Student Profile: Taking the Field Student-Athletes in Law School ML asked six Memphis Law students to tell us about their experiences as student-athletes at their undergraduate institutions and the lessons they learned.

Breaking Bail By Lurene Kelley The movement to reform the money-based bail system has been gaining steam both on the national stage and in Tennessee. This article examines the issue and looks at the progress being made, and in some cases not being made, across the country.

What’s the Line? By Toby Sells The daily fantasy sports betting industry has been turned on its head recently due to new legislation, data leaks and overhyped advertisements with vast promises of wealth. This is the story of how the industry has been tackled for a major loss.

Alumni Spotlight: True Blue InterVIEW Marci Harris (JD ’06), CEO & Co-founder, POPVOX

Alumni Notes

Faculty Accomplishments

Faculty Op-Ed: Unconscious Bias and Our Colorblind Ideology By Professor Demetria Frank Professor Frank goes into detail about unconscious bias in our society and how it impacts our legislative policies, courtroom proceedings and future of race relations in America. 2

DEAN’S LETTER

The Promise of Partnership Dear Friends, At Memphis Law, we’ve long drawn strength from our community. And in our recently unveiled strategic plan (see Dean’s Letter, ML Magazine, Spring 2016), we committed to enhancing existing collaborative programs and developing new ones to more fully realize the promise of partnership. I’m pleased to report that our community partnerships continue to grow and prosper, helping put Memphis Law on the cutting edge of innovation in legal education. We’ve long been privileged to partner with Memphis Area Legal Services. Indeed, it’s fair to say our legal clinic would not have existed but for the longstanding support of MALS, with whom we have long shared space. With the move downtown in 2010, we relocated our clinic to a wonderful new space within the Law School building. But our clinical programs, including especially the Children and Family Litigation Clinic and the Elder Law Clinic, under the outstanding leadership of professors Donna Harkness and Christina Zawisza, continue to draw critical support from our ongoing partnership with MALS. Over the last two years, we’ve created new collaborative programs ... with both old partners and new ones. Last year we announced two new partnerships, one with the City of Memphis and a second with Methodist LeBonheur Children’s Hospital. As previously mentioned in this column, our Neighborhood Preservation Clinic (NPC), in partnership with the City Attorney’s Office, is a first-of-itskind program that forces owners of neglected and abandoned properties to remove the blight that mars some of our neighborhoods. Now nearing the end of its second year, the NPC has handled more than 600 cases, benefitting both the City and our students. Also, in January 2015, we inaugurated our “Healthy Homes Partnership.” Spearheaded by the law school and Methodist LeBonheur Children’s Hospital, this partnership allows students to work with community partners for policy and regulatory change, with the goals of increasing access to healthy housing and ensuring that every child in Memphis grows up in a safe and healthy home.

In August 2015, we unveiled our Medical Legal Partnership (MLP), with two existing partners — MALS and Methodist LeBonheur Children’s Hospital. Led by professor Janet Goode, the MLP puts our faculty and students in the hospital, working side-by-side with healthcare professionals, where they use the law to improve the health of our community’s children. And just this fall, we launched two more new programs with two new partners — an ACE (Adverse Childhood Experiences) Initiative Policy Lab created with very generous support from the ACE Awareness Foundation and a Children’s Defense Clinic in partnership with Shelby County. Under the direction of professor Amy Campbell, the director of the law school’s Institute for Health Law & Policy (iHeLP), the ACE Initiative Policy Lab serves as a multi-disciplinary resource for policy research, policy advising and the drafting of new policies to create a nationally-regarded, traumainformed system — building on the ACE Awareness Foundation’s goals to inform the community about the role of emotional trauma in mental, physical and behavioral health, and implement models that provide sustainable solutions to reducing toxic stress in family systems. Our Children’s Defense Clinic, also introduced this fall, is led by the law school’s newest faculty member, professor Lisa Geis. Providing client-centered legal representation for youth who have been arrested and charged in Memphis and Shelby County Juvenile Court, the Children’s Defense Clinic will play a critical role in institutionalizing reform in Shelby County’s juvenile court system. We’re fortunate to have so many wonderful partners within our community. Not only do these partnerships promise an even better education for our students and an enhanced regional and national reputation for our law school, they also help make Memphis a better place to live and learn. Stay tuned for more! Cordially,

Peter V. Letsou

NEWS + EVENTS PILLARS OF EXCELLENCE AWARDS

IHELP POLICY LAB LAUNCHED

The Cecil C. Humphreys School of Law Alumni Chapter

The University of Memphis

honored eight individuals for their contributions to law

Cecil C. Humphreys School

and to the community at its 2016 Pillars of Excellence

of Law proudly announced

dinner. The 2016 honorees were G. Pat Arnoult, Saul Belz,

the launch of the Institute

John Dunlap, Jef Feibelman, Philip G. Kaminsky, Henry

for Health Law and Policy

Klein and former Memphis Mayor A C Wharton. The Law

(“iHeLP”) Policy Lab: ACE Initiative, thanks to generous

Alumni Chapter also recognized Justice Holly Kirby (JD

support from the ACE Awareness Foundation.

‘82) as Special Distinguished Alumna. The result of a transformative investment by the ACE Justice Kirby (JD ‘82) is an associate justice on the

Awareness Foundation, the iHeLP Policy Lab: ACE

Tennessee Supreme Court. She is the first Memphis Law

Initiative will be a multi-disciplinary resource for policy

graduate to serve as a member of the state Supreme

research, policy advising and drafting of new policies

Court, which now includes a second Memphis Law

to create a nationally-regarded, trauma-informed

alumnus, Justice Roger Page.

system, building on the foundation’s goals to inform the community about the role of emotional trauma in mental, physical and behavioral health, and implement models that provide preventable and sustainable solutions to reducing toxic stress in family systems.

LAW SCHOOL FOR JOURNALISTS

of the fall semester. All of the partner organizations involved in this innovative new clinic spoke to attendees about the details of how the clinic will affect the Juvenile Court system in Shelby County and the future of juvenile defense education in Memphis. Guest speakers included: Shelby County Mayor Mark Luttrell; Juvenile Court Judge Dan Michael; Law School Dean Peter V. Letsou; Shelby County Public Defender Stephen Bush; Children’s Defense Clinic Director Lisa Geis; and participating law students enrolled in the clinic.

of Memphis School of Law Neighborhood Preservation Clinic and the City of Memphis’ Division of Public Works carried out the demolition of the blighted Pendleton Arms Apartments in South Memphis. Students in the Neighborhood Preservation Clinic represented the City in this Neighborhood Preservation Act lawsuit.

LEGAL WRITING PROGRAM EXPANDS The law school is making a substantial change in the way its Legal Methods Program is administered and taught. The law school anticipates hiring three full-time legal writing faculty members to expand the legal research, writing and analysis training it provides to its students and better prepare its students for the increasing complexity of practice in today’s legal environment. This shift will

School for Journalists program in the fall. This event

attention to the important skills associated with Legal

took an in-depth look at how the media has covered,

Methods coursework.

Darrius Stewart case) in detail and with a number of

Children’s Defense Clinic at a luncheon at the beginning

Memphis City Council, representatives of the University

allow the law school to devote more time, study and

by reviewing an important actual Memphis case (the

The law school officially celebrated the launch of the

Memphis Mayor Jim Strickland, members of the

The law school was a partner in hosting this year’s Law

can cover, and should cover police-involved shootings

CHILDREN’S DEFENSE CLINIC LAUNCH AND LUNCHEON

NEIGHBORHOOD PRESERVATION CLINIC DEMOLISHES BLIGHTED APARTMENTS

those actually involved (or lawyers who represent them) participating. It was a truly unique opportunity to hear and interact with lawyers, judges, prosecutors and reporters who were involved in the case or covered it. The event’s keynote speaker was Roy Austin, Jr., a veteran federal prosecutor who is now Deputy Assistant to President

NATIONAL JUVENILE JUSTICE NETWORK AT MEMPHIS LAW The 2016 National

Obama and Director of the White House Office of Urban

Juvenile Justice Network

Affairs, Justice and Opportunity.

Forum was held at the law school in July, bringing together juvenile justice advocates from across the nation. This annual national conference included youth, families, advocates and allies for workshops, plenaries and more. It focused on racial justice and placing those directly impacted by the system — families, youth and communities of color, among others — at the forefront of the youth justice reform movement. 4

NEWS + EVENTS SPRING 2017 DEAN’S TOUR

NEW HIRES

The dean and other staff members will be traveling

The law school made

across Tennessee in spring 2017. Be on the lookout for

several new hires in

event details soon. We hope you can connect with the

the past few months.

law school and other alumni and potential students in

Professor Lisa Geis joined

your area.

the law school faculty as the director of our

SBA FALL SUCCESS STORIES

new Children’s Defense Clinic. Additionally,

The Student Bar Association has achieved several

LaVaire Lockhart joined

initiatives that it laid out for the fall semester. They include

the law school team as

ensuring that a licensed counselor is on-site and available to students at the law school; hosting their annual golf tournament and raising more money as a result than ever before; launching their Wellness Wednesdays program to help students’ physical, mental and emotional health; hosting the first Fall Festival on the law school promenade and hosting a successful 1L Welcome Party as part of the school’s orientation.

U.S. CONSUMER FINANCIAL PROTECTION BUREAU TOWN HALL

our new local technician

the Electoral College featuring John L. Ryder (General Counsel to the Republican National Committee, Litigation Counsel) and Hon. Robert E. Cooper Jr. (former Counsel to democratic Gov. Phil Bredesen and the 26th Attorney General and Reporter of Tennessee), for a discussion and debate on whether the Electoral College has a place in contemporary society.

FACULTY PROMOTION: ALENA ALLEN

support provider for our IT needs. We were also excited

Professor Alena Allen was

to welcome Brittany Williams as our first Neighborhood

awarded tenure in 2016.

Preservation Fellow.

She has been a valued member of the Memphis

FEDERALIST SOCIETY HOSTS ELECTORAL COLLEGE DEBATE

Law faculty since 2010 and was voted Professor of the Year in 2013.

The Federalist Society Student Chapter and Memphis Lawyers Chapter hosted a debate and discussion on

The law school hosted a town hall meeting with the director of the Consumer Financial Protection Bureau (CFPB), Richard Cordray, hosted by Bill Bynum, CEO of HOPE (Hope Enterprise Corporation and Hope Credit Union), and Paheadra Bratton Robinson, executive director of the Coalition for a Prosperous Mississippi. The event included a brief opportunity for participants to provide testimony about their experiences with consumer finance issues, including high-cost mortgages, auto and small-dollar loans in the Mid-South region.

KRESGE FOUNDATION PRESIDENT VISITS MEMPHIS LAW

Memphis Law was excited to be a partner in a new national effort to counter the growing economic and social

Along with Neighborhood Preservation, Inc., Livable

fragmentation in our cities called Reimagining the Civic Commons. The Memphis portion of the national project, The

Memphis and the Urban Land Institute of Memphis, the

Fourth Bluff, was recently awarded a $5 million grant, with a local $5 million match. Reimagining the Civic Commons is a

University of Memphis Cecil C. Humphreys School of Law

partnership of four national foundations that seeks to foster civic engagement, economic opportunity and environmental

co-hosted an introductory reception for Rip Rapson of

sustainability through revitalizing and connecting parks, libraries, community centers and other public spaces.

the Kresge Foundation this fall. Mr. Rapson discussed Kresge’s recent and upcoming investments in Memphis, and its deep commitment to creating opportunities in America’s cities. 5

REIMAGINING THE CIVIC COMMONS

All of the assets involved in the project surround the law school. The historic Cossitt Library, Memphis Park and Mississippi River Park will be revitalized and transformed into places where Memphians from all neighborhoods and backgrounds can come together.

I often joke that I began my field research on Memphis education when I was a first grader at Grahamwood Elementary. Of course, at the age of six, I was far more concerned about which book I would get to read in Mrs. Moore’s reading tub than I was with asking questions about the causes of racial disparities in education. Still, when I began to study education law and policy decades later, one of my first questions was how my own schooling experience came to be.

WITH GREAT POWER COMES GREAT RESPONSIBILITY THE DUAL ROLES OF PUBLIC EDUCATION By Professor Daniel Kiel During the first day of my Education & Civil Rights course, I ask students to answer this question: what is the purpose of public education? The responses I get are varied and include ideals that I think many of us share about the power of education — “to give all citizens an equal opportunity for success”; “to assure that everyone has access to a better quality of life.” Over the course of the semester, we explore other, less flattering purposes that can be served by a public education system — such as maintaining social segregation or stratification or solidifying an existing and unequal power structure. Ultimately,

although I suspect that my students enrolled in the course because they have a belief that education is a crucial part of creating a more just society, I hope that they leave with a sense that a system of education may be used to create justice or to maintain injustice. I am drawn to this paradoxical ability of education to serve very different goals. I am particularly curious about how communities may attempt to make the switch, to use education systems that once created injustice or stratification to instead, in my students’ words, “provide equal access to all students without regard to their race, nationality, or socioeconomic status.” My work has enabled me to examine schools close to home and others very far away. Last fall, I was given the opportunity to build on my research on disparities in American education, which has focused closely on Memphis, by spending a semester as a Fulbright scholar learning about schooling in South Africa. Although I anticipated that there would be parallels between the schooling stories of the two countries, I was struck by the universality of the challenges they faced in transforming education to help overcome disparities once created by that very same system. During the months abroad, I may have been on the other side of the world, but much of what I found felt very familiar.

My elementary school years came 25 years after Memphis began its transition away from segregated schooling, approximately the same amount of time that has passed since South Africa ended apartheid in the early 1990s. In October 1961, 13 African-American first graders enrolled in four all-white elementary schools, a historic moment that occurred without the crises school desegregation wrought in Little Rock and elsewhere. Over the past few years, I’ve had the privilege of getting to know Memphis’ pioneering students and sharing their stories through the documentary I directed, “The Memphis 13.” In these children’s voices is the great weight of the burden endured by breaking into a system once designed to subjugate. For lawyers and desegregation scholars, the film inserts these voices to help illustrate the human impact the transformation of an education system can have. But as anyone familiar with Memphis knows, the transition from using education to racially stratify society, to using education as the great equalizer, has been incredibly complicated and, even today, remains incomplete.

“

But as anyone familiar with Memphis knows, the transition from using education to racially stratify society, to using education as the great equalizer, has been incredibly complicated and, even today, remains incomplete.” For example, during my time at Grahamwood, the school was split between those in the traditional education track and those, like me, enrolled in the optional program, which offered an accelerated curriculum. At that time, the school’s two main corridors reflected this split — there 6

was a traditional hallway and an optional hallway. A fact that I was aware of even then, though I do not know how much I thought of it, was that my classes — optional classes — were made up mostly of white students, while the traditional classes were made up mostly of black students. Thus, although my schooling experience came three decades after Brown v. Board of Education declared segregation unconstitutional and although I was in a school that was broadly diverse, my classrooms were made up mostly of white students like me. And this is the norm in the Memphis area still — regardless of whether they are in public or private schools, regardless of whether they are in traditional or charter schools and regardless of whether they are in the city’s district or one of the new municipal school districts — most students are in classrooms that are made up of peers who share their racial and socioeconomic background.

system today. The transition that began with The Memphis 13 has yet to generate a system where a student’s race does not have a bearing on the educational opportunities that student is likely to experience. Whether the topic is access to the most challenging curriculum or the harshness of student discipline, there remain sizable racial disparities in education in Shelby County. Today’s disparities are not caused by so obvious a practice as racial segregation, but rather are the result of persistent residential segregation, fragmentation of the public school system among multiple districts, and the scarcity of public commitment to providing the resources necessary to serve our student population.

Grahamwood Elementary

As in Memphis, South African education continues to struggle with the legacy of its history of discrimination. Racial homogeneity is still the norm in most schools even though formal racial apartheid has been eliminated and the country’s constitution guarantees not only equality, but also dignity, as well as the right to a basic education. Despite these rights, there remain glaring resource disparities in the country’s schools. During one stretch, I visited a pair of public high schools in Bloemfontein — one, a formerly white school, had beautifully manicured grounds, a small rugby stadium and a student lounge complete with food and drinks; the other was situated in a nearby township where the black population had been forced to live during apartheid, and while there, I found students passing money through a fence to a neighborhood vendor selling bags of chips

Optional schools like Grahamwood were adopted to keep families, particularly white families, from opting for private or suburban schools by drawing them with a high quality public option because the district remained under a court desegregation order through the 1980s and found compliance increasingly difficult as the number of white students dwindled. I was a beneficiary of this as I spent 12 years in excellent public schools, but as my classroom demographics suggest, that experience was not without complicated questions about racial disparities. One need not look too hard to find complicated questions about racial disparities in the education 7

Memphis, of course, is not the only community that continues to attempt the transition from an education system of injustice to one of equality. During my trip last fall, I went beyond this American experience to examine post-apartheid school reform in South Africa. I found myself at the University of the Free State (UFS) in the South African city of Bloemfontein and for nearly six months, I had the opportunity to examine South African schools two decades after the end of apartheid. This was the moment — just over 20 years into the transition — in which I was first entering school in Memphis; but, studying the South African context with a visitor’s detachment was quite different from studying the schools of my hometown. However, what I found was strikingly familiar.

Students at a public school in Bloemfontein during lunch. It was obvious that there remains a great deal of work to be done in South Africa’s education transition. As in Memphis, my research in South Africa aims to examine changes in policy that seek to reduce disparities and use the education system as a tool for empowerment of formerly subjugated communities. My goal is to provide a sense of how present disparities have come to be and to evaluate whether contemporary efforts, laws, or policies might reduce them. Within South African schooling, I am looking into the increased adoption of school choice — policies that enable families to have access to a wider range of schools and that promise to generate competition among schools that will improve education more broadly. It was the idea of choice that had given rise to optional schools like Grahamwood in Memphis. Given the stubborn disparities I see here despite a longer record of similar policies and my own experiences as a student, I am skeptical that choice will cure South Africa’s educational ills. Still, it is instructive to observe how these policies are playing out in a foreign context that happens to share many of our historical legacies.

“

What struck me most in South Africa was the extent to which conversations there sounded so much like conversations Memphians continue to have, just with very different accents.” What struck me most in South Africa was the extent to which conversations there sounded so much like conversations Memphians continue to have, just with very different accents. In South

Africa, they are struggling with the diverse legacies of an overtly discriminatory past. What do monuments of that history mean today? To what extent are the multi-generational effects of that history contributing to contemporary disparities? In communities that remain so physically and philosophically separated, how is trust built? At panels on campus and at “braais” in colleagues’ backyards, I listened to South Africans working their way through this familiar thicket, though my mind kept returning home to Memphis. One of the highlights of my time at UFS was the opportunity to share my work on Memphis and specifically, to share the stories of The Memphis 13. The university is a former white institution that has had difficulty during its transition to serving a more diverse student body — indeed, this was, in part, what drew me to the school. I was curious how South Africans in such a place would respond to the film and the story of black first graders desegregating schools on the other side of the world a half century ago. The South African students quickly drew parallels to their own experiences. The stories of The Memphis 13 seem to resonate well beyond the contexts of race and Memphis because there remain so many examples of individuals bearing the burden of breaking into systems attempting to transition toward greater equality. Today, there remain black students who are the only African-Americans in classrooms from kindergarten through graduate school, and that racial dynamic exists in South Africa as well. But there are also students who may be the only girl or the only native Spanish speaker or the only transgendered student in their classes. The contexts may be different, but the emotions expressed by some of the Memphis 13 are no less relevant for today’s trailblazers than they were in 1961.

Formerly all-white public school in Bloemfontein

“

But one thing that stood out as different — and probably better — in South Africa was greater honesty about the existence of racial issues and the work that is necessary to overcome them.

This universality of the challenges in places like Memphis or Bloemfontein was perhaps my greatest takeaway from my experience at UFS. Upon my return to the law school, I shared some reflections from South Africa with a gathering of students. One student asked if there was anything South Africa was doing better that we could learn from. I hesitated, because our schooling transition has such a head start on that of South Africa.

In South Africa, racial reconciliation — and to a lesser extent, educational improvement — are issues at the very core of the country’s being. There was an urgency in discussions there about the work necessary to ensure the country’s survival. The events of the past several years have shown that these issues lurk at our very core in the United States as well. They continue to reveal that our journey to match outcomes to the educational ideals my students identified remains unfinished. My hope is that we can confront them with a sense of urgency equal to what I observed in South Africa. That means understanding the multigenerational effects of systemic discrimination, but finding common interests in creating a new course forward, cognizant of such effects, but free from the divisions of the past. Doing so is difficult, but it is essential if our education system is to continue its transformation from a source of injustice to a fountain of educational opportunities.

The South African students quickly drew parallels to their own experiences. The stories of the Memphis 13 seem to resonate well beyond the contexts of race and Memphis because there remain so many examples of individuals bearing the burden of breaking into systems attempting to transition toward greater equality.”

From left to right: Dale Hutcherson, Chelsea Hinton, Asa Toney, Patrick J. Hillard, Carmen Manes, Richard Vaughan

The experience of being a student-athlete lends itself well to becoming a law student. Many of the same traits honed during a student’s time as an athlete at the undergraduate level seem to carry over well to their law school career. ML asked six current Memphis Law students, all of whom were student-athletes at their undergraduate institutions, a few questions about their unique perspectives on their experiences and outlook on the legal landscape.

Patrick J. Hillard – Class of 2018

Carmen Manes – Class of 2018

Richard Vaughan – Class of 2019

Baseball and Basketball, Paul Quinn College

Soccer, Christian Brothers University

Cheerleading, University of South Carolina

Q: What was the most important lesson you

Q: How do you view the current amateurism

Q: What can you apply from your time as a

learned as a student-athlete?

model of college sports? Would a pay-for-play

student-athlete to the rest of your law career and

model work?

beyond?

students only have to worry about classes,

A: I personally agree with the NCAA’s current

A: The lessons that I learned as a cheerleader

but student-athletes have the full-time job of

amateurism model. I believe it is of the utmost

are things that will apply to everything I do. As

juggling classes with practice, workouts, film

importance that schools prioritize academics

I move forward, I feel much better prepared

sessions, rehab, games and more. All of the

over athletics. As a college athlete, it is

to assess a loaded schedule and work my way

obstacles related to that experience taught me

sometimes hard to remember that you are

through it based on the things that carry the

how to effectively manage my time in order to

a student first. I have never thought that my

most weight and time commitment. The lessons

ensure that I was getting the most out of my day.

scholarship and free gear and equipment were

of “representation” will stay with me as well.

not enough compensation. The trade was

It is important in the legal field and all areas

Chelsea Hinton – Class of 2019

more than fair. Additionally, I believe that a

of life to be able to treat every presentation,

Volleyball, Lyon College

pay-for-play model for football and basketball

appearance or case with the same enthusiasm

A: The need for time management is key. Other

would result in every sport lobbying for higher

and approach. Also, cheerleading helped me to

Q: What can you apply from your time as a

compensation and it is a very slippery slope,

learn how important it is to be able to work with

student-athlete to law school?

which could result in a lot of controversy

people, specifically people that look, think and

between athletes and their athletic departments.

act differently than me.

Asa Toney – Class of 2018

Prof. Lynda Black – University of Memphis

Basketball, Maryville University – St. Louis

Faculty Athletic Representative

Q: What was your biggest takeaway from your

“The time demands placed on student-athletes

student-athlete experience?

equip them well for law school, where the

A: As a student-athlete, I learned to embrace the discipline and hard work that it entails. Setting goals on the court and in the classroom and learning how to balance the two provided me with a strong work ethic and a disciplined desire to attain those goals in my education, career and throughout life.

Dale Hutcherson – Class of 2018 Football, Rhodes College

A: The importance of honing your craft through preparation and hard work. The thing that separates most players, like any venture in life, is the amount of hard work and preparation that

Q: What’s your take on student-athletes being

one puts in. Playing a college sport taught me

paid?

that no matter how talented you are, if you don’t

A: I believe they should be paid for their image and

work hard and prepare, you won’t be successful.

breadth of the material covered demands both organization and efficient use of time. Additionally, student-athletes have faced moments in practice or in competition in which they must reach deep within themselves to run the final lap, lift the final weight or play the final point. Endurance, together with a belief that you can thrive under pressure, is a trait developed

likeness, because student-athletes’ performance

during long hours on the practice field, court or

and talents help to generate billions of dollars each

track. Sustained hard work and a genuine belief

year. However, I do think the intake of the student-

in yourself underlie the success of both the

athlete should be limited to a reasonable amount,

student-athlete and the law student.”

whatever “reasonable” may mean. Amateurism is worth preserving, but it should be done so in a way that protects the student-athlete.

11 11

“Because of the bail system, the scales of justice have been weighted for almost two centuries not with fact, nor law, nor mercy. They have been weighted with money.” — President Lyndon Johnson

On June 22, 1966, President Johnson signed into law the Bail Reform Act of 1966. It would make him the first U.S. president to publicly support the rights of the accused. This law also marked the first time the American bail system had been reformed since the First Congress established the federal judiciary in 1789. During that same month in 1966, Chief Justice Earl Warren wrote the opinion for Miranda v. Arizona, requiring law enforcement to inform people of their rights when they are taken into custody. The 1960s proved to be a golden era in criminal justice reform. Earlier that decade, Memphis native Abe Fortas successfully argued Gideon v. Wainwright (1963) — the Supreme Court decision that established the right to counsel for any person facing the deprivation of liberty, regardless of ability to pay. Also, in 1966, Fortas, by then a Supreme Court Justice on the historic Warren Court, wrote the majority opinion in Kent v. United States, the decision that guaranteed due process for children brought to juvenile court. And one year later, Justice Fortas would author the opinion for In re Gault (1967) which extended the right to counsel to children. But these reforms were happening amidst a growing climate of fear. Since the 1940s, the U.S. crime rate had doubled, and the country’s patience was wearing thin. Lawmakers and courts were feeling pressure to place public safety above the rights of an individual accused of a crime. When President Nixon took office in 1969 on the promise of a tough law-and-order platform, one of his earliest efforts was to amend the Bail Reform Act of 1966. Nixon proposed the Federal system adopt preventative detainment to keep the accused in jail until trial, based on the perceived

likelihood of conviction or danger to society. This flew in the face of those who believed bail existed only to ensure court appearance. The author of the 1966 Bail Reform Act, Senator Sam Ervin (D-NC), claimed preventative detention amounted to little more than depriving a person of liberty for a crime he had not committed. Nixon’s proposal was largely rejected, implemented only in the District of Columbia. The 1966 act stood for nearly two decades. In 1981, during a speech before the American Bar Association, Chief Justice Warren Burger revived the argument that the accused were receiving too many safeguards at the expense of community safety. A few years later, President Ronald Reagan would sign the Comprehensive Crime Control Act of 1984, which contained a Bail Reform Act that unraveled the positive reforms of the 60s.

“The Bail Reform Act of 1984 abandoned the philosophical underpinning of bail as necessary only to deter risk of flight. It added a much more subjective idea — that bail should be denied or set at an amount that would purportedly protect the community from those perceived as dangerous.” The Bail Reform Act of 1984 abandoned the philosophical underpinning of bail as necessary only to deter risk of flight. It added a much more subjective idea — that bail should be denied or set at an amount that would purportedly protect the community from those perceived as dangerous.

Today, close to 450,000 people are in pre-trial detention in the United States, including those denied bail and those who cannot afford to make bail. Fifteen percent of those with relatively low bail — $500 or less — stay in jail, simply because they can’t afford it. Fifty years ago, the Bail Reform Act of 1966 sought to make release without bail the norm, not the exception. It sought to recognize the theoretical presumption of innocence that we grant anyone accused of a crime. As President Johnson said in his speech before Congress, this reform ultimately sought to transform a justice system “weighted with money.” But in 1984, this notion of bail was rejected. Survey the criminal justice reform landscape today, however, and you will see a renewed movement aimed at removing money from the scales of justice; it is fueled by lawyers, academics and philanthropists who want to reform — or even abolish — America’s money-based bail system.

Rethinking How We Use Jails The Philippines and the United States are the only two countries in the world that rely on a private bail industry. It’s estimated that bail bonds are a yearly $14 billion dollar U.S. industry. It works like this: after someone is arrested, he or she is either released on their own recognizance or a judge will set a bail amount. If the bail is paid, the person is free to go and expected to return for court appearances. If bail cannot be paid, he or she sits in jail until the case is settled, unless they can pull together 10 percent of the bail amount to secure a bond from a private bail bond company. If the defendant fails to show up for their court date, the bond company is required to find and bring him to court — or pay the court for the entire bail amount. And even for those who do make their court dates, including those found not guilty — that 10 percent payment to the bail bond company is gone, forever. In a city like Memphis, one of the poorest in the country, thousands of people cannot pay 10

percent of their bail — so they sit in jail at a cost of $107 per night to taxpayers. During that time, many pay the personal costs of losing jobs, missing school and not being able to support their family while awaiting trial. According to the Memphis-based criminal justice reform group, Just City, every month in Memphis an average of 230 people cannot afford to post a bond under $5,000. The average amount of time each of these individuals stays in pre-trial detention is eight days. By those numbers, Shelby County spends approximately $2 million per year detaining low-level offenders, who are too poor to post bond. “It’s critical to look at any alternatives to keeping people out of pre-trial detention,” said Shelby County Public Defender Stephen Bush (JD ‘89). “Right now, we’re experiencing an increase in our jail population even though arrests are down.” In June of 2016, the average number of time males spent in the Shelby County jail spiked to a high of 80 days. In an article written this year by the Memphis Daily News, Criminal Court Judge Chris Craft attributed the jail population increase, in part, to new tough-on-crime state laws that often require prisoners to serve 85 percent of their time before being considered for parole. This enhanced punishment drives inflated bond amounts, which fewer people are able to make. The result is more people sitting in jail. In a September 2016 podcast interview, former Shelby County District Attorney General and now Executive Director of the Memphis Crime Commission, Bill Gibbons, discussed what changes could make Memphis safer and our justice system, fairer. One area he stated should be reexamined is bail. “I do think the bail system needs to be reformed,” said Gibbons. “I don’t have a silver bullet as to how to do that. But I do think there are a fair number of people sitting in jail awaiting trial, simply because they can’t make bail. And unfortunately in our system, you can wait a year or more between the time you are arrested and the time it goes to trial.”

In 2015, the MacArthur Foundation chose Shelby County as one of 20 sites considered for up to $2 million in grant money — a five year, $75 million investment to change the way America thinks about and uses its local jails. Shelby County did not make the final cut, but it did receive a $150,000 grant to continue the work of reducing its jail population. Changing the bail system is one way to drive down the numbers and rethink what pre-trial detention should and can be. “What we have to remember when we talk about bail and pre-trial detention is that we are talking about people who have not been convicted of anything,” said Bush. “Yet we are jailing them for days and weeks at a time, many because they are too poor to post bail. We cannot have a different standard of justice based solely on means. That’s not fair. That’s not a justice system with integrity. We have to do better than this.”

The Constitutional Case for Bail Reform In the beginning, Harvard Law graduate Alec Karakatsanis spent most of his time driving around the South, sitting in the back of courtrooms in a hooded sweatshirt, watching. What he saw would be shocking to many — people thrown into jail for their inability to make court payments. Karakatsanis had seen the system do this to poor people before, as a public defender in Washington D.C. But as the co-founder of the nonprofit Equal Justice Under Law, he watched through the lens of systemic change. “It was a complete abdication of judicial and prosecutorial responsibilities,” said Karakatsanis. “A complete perversion of the local court systems.” At the time, he was working primarily on debtor’s prison cases, fighting the fines and court fees that in some jurisdictions can end in jail time for nonpayment. The U.S. banned debtor’s prisons under federal law in 1833. The Supreme Court ruled them unconstitutional in 1983. Karakatsanis began suing local systems, arguing that they still exist. And he was winning.

Stephen Bush (JD ’89) “Federal judges were agreeing that no person should be in a cage, just because she can’t make payment,” said Karakatsanis. It was then that he made the connection to money bail.

“It became very clear to me that the entire foundation of the American money bail system bares that same violation. That people are kept in a cage unless they can make a payment.”

“It became very clear to me that the entire foundation of the American money bail system bares that same violation. That people are kept in a cage unless they can make a payment.” So Karakatsanis began to use the same argument with pre-detention cases that he had used with post-conviction cases — that jailing resulting from inability to pay is a violation of the Equal Protection Clause of the Fourteenth Amendment. Simply put, if a person is deprived of liberty only because he cannot pay bail like a person of means could, then the law is not being applied equally.

In January 2015, Karakatsanis launched his first assault against the American money bail system in a federal court in Alabama. In Varden v. the City of Clanton, he challenged that the city discriminated against the poor because it imprisoned those who couldn’t afford bail and let those who could go free. One month later, the U.S. Department of Justice filed a Statement of Interest in support of the plaintiff. In response, the City of Clanton settled and agreed to reform its bail system, dropping money bail requirements for nearly all misdemeanor cases.

So while civil rights attorneys sue local systems, and large philanthropic organizations encourage county governments to embrace efforts like bail reform to reduce jail population, some small nonprofits are moving in around the edges — one bail bond at a time.

“The criminal justice system should not work differently for the indigent and the wealthy,” stated then acting Assistant Attorney General Vanita Gupta of the Civil Rights Division on the DOJ’s decision to file the Statement of Interest. “Bail practices that create a two tiered system of justice by treating the indigent and the wealthy differently undermine fundamental fairness in our nation’s criminal justice system.”

Defenders of the system point out that bail is expressly permitted by the Constitution and argue that chaos will ensue if communities are forced to release all arrestees just because they say they can’t afford to pay a cash bail.

Last year, Karakatsanis was involved in 12 more class action lawsuits in 12 different cities challenging these practices. Two rulings are now on appeal and the outcomes of those cases could clear the way for broader reforms. In early September, he started a new organization, the Civil Rights Corps, to go after bail reform, debtor’s prisons, the privatization of probation, the militarization of police and prosecutorial misconduct in what he characterizes as “an even more ambitious way.” As he widens his attack on the criminal justice system, Karakatsanis says he intends to keep his bail strategy local — suing county by county, city by city — with the end game to abolish the American money bail system. “It’s one of the very few areas where we know exactly what to do, and we know exactly what works and we’ve been doing the exact opposite because it benefits a very small group of people,” said Karakatsanis. “And there is large consensus among many in the system — prosecutors, judges, public defenders, advocates, communities, and families — a huge consensus on this issue of bail reform. Because the current model is devastating to people and local budgets.”

Defending Money Bail On the flipside of the coin, a certain segment of the population views the bail industry somewhat differently.

“It’s the only part of the criminal justice system that doesn’t cost the taxpayers any money,” said Dennis Sew, vice president of the Professional Bail Agents of the United States (PBUS), in an interview with Northern California NPR affiliate KQED. Bail bond agents and the bounty hunters they employ have enforcement powers similar to police officers in terms of finding and detaining absentee clients. “The bondsman has a financial interest in the defendant,” Sew explains. “We will always go looking for him.” “If you’re homeless and you have nobody and there’s no guarantee you’ll show up in court, then you may need to stay in jail,” Sew noted in the same interview. The new president of the PBUS, Beth Chapman, has continued that stance in remarks and actions since she assumed office. In an interview with Politico, she said, “I’ve just taken over this association and I’m going to be very aggressive in

this fight.” She claims to have been very involved in the failure of several bail reform bills around the country, most recently in Idaho and Kansas. This March, she announced that the group had hired its first lobbyist since 2001, Terry Allen, the president of Fidelis Government Relations, who also worked as the presidential campaign manager for Rick Santorum. The group also retained Harmeet Dhillon, of the Dhillon Law Group, to deal with the bail lawsuits. In August of this year, the Obama administration asked a federal appeals court to declare that it’s unconstitutional to keep people in jail for minor crimes due to the fact that they are too poor to afford bail. According to the amicus brief filed by the Department of Justice in the Eleventh Circuit, “A bail scheme that doesn’t take into account an individual’s ability to pay violates the equal protection and due process requirements of the Fourteenth Amendment because it punishes people for their poverty.” The class action lawsuit that spurred this particular series of events originated in Calhoun, Georgia. Chapman and others defending the money bail system argue that the DOJ’s constitutional argument is flawed because bail is expressly permitted under the Eighth Amendment and is only disallowed if the amount is “excessive.”

“As a textual matter, the Eighth Amendment pre-supposes the permissibility of monetary bail,” according to the amicus brief filed by former U.S. Solicitor General Paul D. Clement, who is now with Kirkland & Ellis LLP, Washington. “As a textual matter, the Eighth Amendment pre-supposes the permissibility of monetary bail,” according to the amicus brief filed by former U.S. Solicitor General Paul D. Clement, who is now with Kirkland & Ellis LLP, Washington.

Continued on page 26 14

utlaws ran loose in the Tennessee State Capitol building and state Rep. David Alexander (R-Winchester) wanted them rustled up. The varmints weren’t cattle rustlers, or train robbers. No, they were promoting gambling right there in the state house. To make it worse, Tennessee’s head legal honcho had said (that very day!) that their kind of game, daily fantasy sports, was against the law.

So, back in April, during a meeting of the House Finance Ways and Means Committee, Alexander urged the committee chairman to summon Tennessee Highway Patrol troopers and make some arrests. But the chairman didn’t and the troopers didn’t. Instead, Alexander (R-Winchester) was content with a legal explanation from House counsel and he seemed to even appreciate a profane rebuke from Rep. Curry Todd (R-Collierville).

It was perhaps the hottest debate ever carried out in the Tennessee General Assembly’s push to legalize daily fantasy sports in Tennessee. The bill had its critics, of course. But it largely coasted through the House and Senate unfazed and was signed by Governor Bill Haslam without a flinch. As that ink dried, Tennessee became the third state to legalize daily fantasy sports. But it was the first state where a vote by the legislature overruled an attorney general’s ruling on daily fantasy sports. On the day of that pointed

interaction between Alexander and Todd in a House committee meeting, Herbert Slatery, Tennessee’s attorney general, issued an opinion that, among other things, labeled daily fantasy sports as “illegal gambling.” But lawmakers (with the help of high-paid industry lobbyists) threaded the legal needle for daily fantasy sports here, convincing other lawmakers that winning at the “sport” required skill, not just chance. And, therefore, playing the online game was perfectly fine in the Volunteer State.

Legal maneuvering on the issue of daily fantasy sports has come quickly over the past few months. But the speed is unmatched by the rocket growth and pervasiveness of the power-house daily fantasy sports industry, which emerged from the ether only a few years ago to multibillion-dollar valuations.”

Companies that once zoomed ahead now find themselves groping in the dark, making for one of the biggest, quickest corporate legal turnarounds in recent memory.

A strange little place Americans carry a certain distaste for sports betting. There’s some certain profanity to it that, perhaps, upsets our Puritan underpinnings. It’s why “bookie” feels like a bad word and why sports betting helped Las Vegas get its “Sin City” moniker. But it’s not that way in nearly any other country in the world, explains Jeffrey Standen, dean and professor of law at Northern Kentucky University. He’s a sports law expert and has written extensively on athletes, the corporate structures of sports leagues, and, of course, sports gambling, which he calls “the third rail of American gambling.” Every state in the country, except Utah and Hawaii, allows gambling in some form or another, he said. Depending on where you are, you can play the lottery, gamble at casinos, bet on horse racing, jai alai, and, even in some places (only a few) you can bet on sports. “You can bet on the stock market, commodities prices, investment on derivatives, you can bet on insurance contracts; you can make a lot of wagers if you want to call them that, loosely, on the future outcomes of unknown events — but not sports,” Standen said. “That’s not true in nearly any other country in the world. So, it’s a strange little place we occupy here.”

But it was advertised on TV

But quick, too, was the legal reversal of that industry. Before last year, daily fantasy sports companies operated in the Wild West. A 2006 federal law protected the industry but regulations were so loose that they were virtually nonexistent. The companies flexed their money muscle and dared state officials to stop them.

If you’ve (even accidentally) accessed any sort of sports media in the last few years, you’ve been exposed to the hyped-up madness that is daily fantasy sports. Glitzy, loud, heart-thumping ads from DraftKings and FanDuel douse sports television in their ubiquity. Their logos grace fields, rinks, diamonds and even ESPN news desks.

Those same companies have since crawled back to state houses across the country, not only playing ball with lawmakers, but asking them to, please, establish legal frameworks for their industry. They’re even willing to share some of their money.

But fantasy sports, in general, didn’t start out that way. The modern iteration of the sport (yes, its legions call it that) started with math nerds in a French restaurant in New York City.

Jeffey Standen If you don’t know what fantasy sports are, they have nothing to do with Harry Potter or Gandalf the Grey. The fiction that puts “fantasy” in “fantasy sports” is the made-up teams that never exist. Fantasy players (or “team owners” in the fantasy nomenclature) pick athletes from several different teams for their rosters (a quarterback from the New England Patriots and the kicker form the Pittsburgh Steelers, for example). Points are awarded based on the performance of the athletes on that roster. And, just like in any sport, the player with the most points wins. Fantasy sports have been around since players picked golfers in tournaments around 1950. But fantasy sports took a major turn in 1980 with the advent of Rotisserie League Baseball. A magazine writer and his friends would meet at a New York City French restaurant called La Rotisserie Francaise (hence the name) to draft Major League Baseball players before the season began. The Rotisserie League team “owners” would follow their players’ statistics throughout the entire season. Predicting the outcomes of the season made the Rotisserie League different than simply betting on a game or which team would win the pennant. They had to have knowledge of the players and the games to predict the outcomes. In short, the Rotisserie League required skill. Back then, all the stats were compiled by hand by the team owners. It was fun and it really wasn’t a money game. Fast forward to the 1990s. Computers crunched those stats quicker and harder than a guy with a pencil and the sports section. The data was easier to get and it was more widely available and players from across the country hopped on board. 16

Fantasy data companies sprang up to assist fantasy players. Yahoo offered a free fantasy service in 1999, competing with several paid services already on the market. The National Football League (NFL) jumped in the fantasy game with its own service.

“Fantasy gives people a rooting interest in almost every single NFL game that goes on during the entire season,” Doyle said. “I think that’s the reason the NFL has become such a powerhouse in American sports and why it is far and away the most popular sport in America.”

Football is certainly the most-played fantasy sport, according to the Fantasy Sports Trade Association (FSTA). But fantasy leagues exist for NASCAR, basketball, hockey, cricket, boxing, Formula 1 racing, golf, rugby, surfing, pro wrestling and more. From 2006 to 2009 you could even play Fantasy Congress.

But as the digital revolution revved up, so did fantasy sports. Following an entire season of baseball, or football, or hockey wracked the patience of the instant-gratification internet generation. Also, as Doyle explained, a fantasy team owner’s interest waned, too, if they picked wrong and had to hang on to a terrible team for an entire season.

In 1988, about 500,000 people were playing fantasy sports. By 2003, the figure had jumped to 15 million, a nearly 270 percent increase, according to the FSTA. Those players, on average, spent $150 a year on fantasy sports, making it a $1.5 billion industry. By 2015, nearly 75 million played fantasy football according to data compiled by American Express — and they were going to spend $4.6 billion. Fantasy players are mostly white males, with college degrees (or more) and full-time jobs, according to the FSTA. They’re single, love football, and are around 34 years old, with an annual household income of around $93,000. They consume about 18 hours of sports every week and play fantasy sports about nine hours each week. Bennett Doyle, co-host of ESPN 790 AM’s Fantasy Kick-Off Show, said fantasy football hooks fans in a brand new way.

Fantasy gives people a rooting interest in almost every single NFL game that goes on during the entire season,” Doyle said. “I think that’s the reason the NFL has become such a powerhouse in American sports and why it is far and away the most popular sport in America.” 17

Daily fantasy madness Companies knew these owners loved competition (especially when money was on the line) and devised a new game that pounded their pulses daily. Instead of picking a roster for an entire season, fantasy owners could draft players from teams playing on any given day. Daily fantasy sports was born and it set the stage for those two aggressive start-ups, whose names you know from those ubiquitous television ads, DraftKings and FanDuel. The two relatively new companies waged a multimillion-dollar advertising spending war on one another, which put those commercials on every game and sports show and their logos on nearly every field, ice rink, and basketball court in America. They were fighting a public message battle that their games made more winners (even millionaires!) than the other guy. In those ads, bros in backwards ball caps and football jerseys would stare tensely into television screens until something (we were never shown what) would happen on that screen. The bros would then rise to their feet, raising their arms in a victorious “V.” They’d then lower their hands to cover their faces in disbelief. They’d won their game and had become an instant millionaire thanks to DraftKings or FanDuel. And it was not hyperbole. Winners took home piles of cash. FanDuel and DraftKings paid out millions of dollars (and took in about $3 billion in entry fees last year).

But that was then, last year. Now, the commercials are less frequent. Those commercials are less flashy, their promises less lofty. The companies — no doubt — are taking in less cash. Though both are valued at around $2 billion, neither say they are profitable yet. FanDuel and DraftKings are now waging a new kind of war. It’s not the glitzy, bullet-speed, fullcontact battle to win the industry’s top title. It’s a slow, careful, plotted approach — not to the win more players and all of their beautiful money — but to win over lawmakers in state houses across the country, convincing lawmakers to allow them to offer their games there. This time, the companies aren’t blood rivals, they’re working together.

FanDuel and DraftKings are basically brand new companies working in a brand new industry. They went hard out of the gate with a product that (even though those commercial were rolling all over television) smelled illegal to some.” FanDuel and DraftKings are basically brand new companies working in a brand new industry. They went hard out of the gate with a product that (even though those commercial were rolling all over television) smelled illegal to some. “Daily fantasy sports looks somewhat legal and somewhat illegal,” said Standen. “You could make

pretty close arguments either way. That is where it still sits right now.” Both companies — FanDuel and DraftKings — put their multi-million-dollar cart before the legal horse, big time. So, instead of rocketing full throttle to that next pulse-pounding pot of gold, they’ve touched the brakes, feeling their ways through a fog of industry uncertainty and hoping to slowly build a solid foundation to build into the future.

Congress and gambling Back in 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA). It was an update of sorts to the Federal Wire Act, which prohibited electronic transmission of information for sports betting across telecommunications lines. A court ruling said the Wire Act did not “in plain language” prohibit internet gambling. So, the UIGEA — in short — sought to provide that plain language. The act “prohibits gambling businesses from knowingly accepting payments in connection with the participation of another person in a bet or wager that involves the use of the internet and that is unlawful under any federal or state law.” The legislation was “rammed through Congress,” according to I. Nelson Rose, a professor at Whittier Law School, writing in Gaming Law Review. No one on the Senate-House Conference Committee had seen the final language of the bill, he said.

It was tacked onto the unrelated Safe Port Act and passed on the last day before Congress adjourned for the 2006 elections. Backers said the law was needed because internet gambling was a growing problem for banks and credit card companies. However, the real intent, it seemed, was to shut down online poker. But Congress did carve out several business transactions that perhaps had elements of chance. Stock market investing was carved out, for instance, as was life insurance, health insurance, commodities futures and fantasy sports. “That action by the Congress triggered a response from people saying — wait a minute — we can create a money market, a gambling market, or something that looks like gambling market in the area of fantasy play — these contests based on these statistics on football or baseball games,” said Standen. Here’s how the FSTA, the fantasy sports industry group, explains the carve-out in a section of its website labeled “Why Fantasy Sports Is Not Gambling — It’s a Game of Skill.” “(UIGEA) specifically exempts fantasy sports games, educational games or any online contest that ‘has an outcome that reflects the relative knowledge of the participants, or their skill at physical reaction or physical manipulation (but not chance), and, in the case of a fantasy or simulation sports game, has an outcome that is determined predominantly by accumulated statistical results of sporting events, including any non-participant’s individual performances in such sporting events … ’” says the FSTA site. This was the quiet, little legal loophole through which several companies — including DraftKings and FanDuel — loudly and proudly drove through their fire-belching, horn-blaring, multi-milliondollar monster truck.

The turning point Should the daily fantasy sports industry fade in light of new legalities, its tombstone might read: “It was the ads that got them.” For it was, indeed, the onslaught of ads that got the attention New York Attorney General Eric Eric Schneiderman

Schneiderman, according to an investigation into the industry’s implosion by ESPN’s “Outside the Lines.”

Schneiderman was the first attorney general in the country to seriously turn attention to daily fantasy sports. He huddled his attorneys and investigators to review what they knew (and didn’t know) about those two companies constantly promising instant wealth in those seemingly ceaseless TV ads, according to the ESPN story.” Schneiderman was the first attorney general in the country to seriously turn attention to daily fantasy sports. He huddled his attorneys and investigators to review what they knew (and didn’t know) about those two companies constantly promising instant wealth in those seemingly ceaseless TV ads, according to the ESPN story. Last November, his office issued cease and desist letters to FanDuel and DraftKings, “demanding that companies stop accepting illegal wagers in New York State.” (Traditional, season-long fantasy sports weren’t implicated.) “Our investigation has found that, unlike traditional fantasy sports, daily fantasy sports companies are engaged in illegal gambling under New York law, causing the same kinds of social and economic harms as other forms of illegal gambling, and misleading New York consumers,” Schneiderman said in a statement at the time. “Daily fantasy sports is neither victimless nor harmless, and it is clear that DraftKings and FanDuel are the leaders of a massive, multi-billiondollar scheme intended to evade the law and fleece sports fans across the country. Today we have sent a clear message: not in New York, and not on my watch.” Continued on page 31 18

Robb Report in Boston and eventually ended up back home in Tennessee helping out with federal recovery efforts after a devastating tornado tore through her hometown. This experience with rebuilding her town and dealing with federal agencies led her to decide to enroll in law school, so she came to Memphis to attend the University of Memphis Cecil C. Humphreys School of Law. After graduating, she did an internship with the House Ways and Means Committee in Washington, D.C. and soon afterwards took a job on the Hill working primarily on healthcare reform, Medicare, waste fraud and abuse. This was where she saw some of the communication and technology problems plaguing Congress first-hand. She noted that it wasn’t even set up to fix its own structural problems and started thinking of ways to solve this seemingly insurmountable problem. In January 2010, she left D.C. and began the process that eventually spawned her revolutionary new “civic start-up,” POPVOX.

TRUE BLUE INTERVIEW

Harris and POPVOX are essentially creating transparency in a process that has been convoluted and difficult to understand from an outsider’s perspective since its inception. POPVOX takes what happens offline, in the real world of Congress, and puts it online for the entire public to have access to it. Harris has created a civic engagement platform that meshes real-time legislative data with users’ personal stories and sentiment, delivering public input to government in a format tailored to actionable policy decisions. POPVOX is a direct connection to policymakers.

Marci Harris (JD ‘06) CEO & Co-founder, POPVOX Marci Harris (JD ’06) is changing the world. That’s not a lighthearted exaggeration. Harris and the company she founded, POPVOX, are helping to fix the broken communication system that exists between Congress and the American public. 19

Harris grew up in nearby Jackson, Tennessee. She’s from a long line of entrepreneurs in the region, but her school and early career took her far away from the Volunteer State. After spending some of her teenage years in Australia, she finished high school in Memphis before leaving for college at the Franklin School in Switzerland. After college, she moved back to the U.S. for a job at the

One of the keys to Harris’ success with POPVOX, both among Congress and the public, is that POPVOX verifies that you’re a real person and an actual constituent, and guarantees delivery of your message. Lawmakers primarily only want to hear from their constituents, people in their district or state, so this format filters out a lot of noise for the elected official and makes it easier for constituents to make voice their opinion in a way that is heard. Harris founded POPVOX to empower people and amplify their voices in government, and to change the world. As an affirmation of its importance to the public record, The Library of Congress officially announced that the POPVOX site and its information would become part of the permanent historical record of the United States. We recently had a conversation with Marci about POPVOX, her home state of Tennessee, and a look back at how she got to where she is today, on the leading edge of meaningful civic change and political communication.

Was there anything that occurred during your law school career at Memphis that helped set you on your path to politics or entrepreneurialism? I came to Memphis Law with a longstanding interest in politics and policy that was definitely bolstered by my time there. I learned so much from professors and classmates. I am sure that many of my discussions there planted seeds that became POPVOX. I also still benefit tremendously from the fundamental “think like a lawyer” training of those years; the writing basics of legal methods and law review; and so much from prepping for traveling moot court. There is one thing from Memphis Law that I would say definitely brought about the founding of POPVOX: manual Shepardizing. Professor Romantz made us do it for the first half of 1L Legal Methods and it was awful. I can still see the shelf full of those red books in the basement of the old library. And then, second half, the clouds parted and the angels sang and we got to use Lexis and Westlaw. Going to work in Congress in 2007 was like returning to manual Shepardizing, so much was on paper. So many processes were repeated by every staffer in every office and it seemed impossible that there was not a better way to do these tasks or keep track of the information. At that time, most people who understood technology didn’t understand Congress and vice versa. So, I kept a list of all the things I thought someone should fix; and everyone I brought the list to completely agreed, “someone should really build that.” Turns out no one was going to do it for me. So I eventually left Congress and found a great team who could work with me to build it, and the vision has continued to grow from that original vexing problem of a frustrated staffer.

Your company is expanding its services to a state level soon, with Tennessee being one of the first states that you’ll launch in. Why did you choose Tennessee for such an important roll-out choice? Yes, we are running a pilot in Tennessee in the last quarter of 2016, and then onto the rest of the country in 2017. We as a company have been spread around the country since we started, with team in D.C., California and Tennessee. That has been so important for ensuring we are plugged into Washington but don’t have Beltway blinders; that we understand and benefit from the latest and greatest from Silicon Valley, but that we are building tools that resonate with real people. Our Tennessee roots have always provided that grounding, so it is really appropriate that our major state test is Tennessee. But even above and beyond my connection (and that of several team members) to the state, Tennessee really does have a wonderful history of participation that makes it a particularly awesome place to start. The original “Volunteer State” moniker wasn’t about football. It’s a deep history of civic responsibility that is felt from the Mississippi to the Smokies. Tennesseans aren’t shy about their opinions and that’s important for us to help channel that input to lawmakers and also to hear from Tennesseans how we can make POPVOX work for them.

Any lessons for aspiring entrepreneurs at Memphis Law? There is an entrepreneurial spirit in the Mid-South that runs deep. I think in a lot of ways it goes back to our opinionated streak: we don’t have any trouble imagining how something could be improved and we’re not content to just talk. It’s been my experience that “entrepreneurship” is really just giving a name to that idea that takes root and won’t leave you alone until you start taking steps to make it happen … and one step leads to the next step and before you know it you have walked a mile or two, or 20. Now is a great time for aspiring legal entrepreneurs: few laugh anymore at the idea that the industry will be completely transformed in the next decade by artificial intelligence, algorithmic contracts, and whatever else is just over the horizon. My advice is to delicately balance respect for professors, mentors and precedent by challenging limitations and asking: “Does this make sense?” and “Is this still true?” What was not possible yesterday will be possible tomorrow. Whether the content of the contracts of the future, or the way in which those contracts will be drafted and enforced, the world is changing. And the tools and practice of law will have to change with it. Increasingly, it is not technology that determines what is possible — the technology now exists to do almost anything that can be imagined. The difference maker is the idea or the vision, identifying a need that has not yet been filled. It’s a great time to be starting in the legal field with fresh eyes and new questions, free of old assumptions about what is possible or which tools are available.

ALUMNI NOTES

1968

Judge Richard P. McCully was re-elected to a two-year term as Chief Tribune of Phi Alpha Delta Law Fraternity at the Fraternity’s national convention. Glen G. Reid, Jr. was listed as a leader in the areas of litigation and general commercial law in the Chambers USA 2016 guide.

1971

Randall L. Kinnard, of Kinnard Clayton & Beveridge, Nashville, Tennessee, has been inducted into the International Academy of Trial Lawyers. Mr. Kinnard also received the “Outstanding Trial Lawyer of the Year” award for 2016 from the Tennessee Association for Justice. This award is in honor of his superior skills and achievements in civil justice.

1976

M. Anderson Cobb, Jr. was listed in the 2017 edition of Best Lawyers.

1972

Richard Glassman was included in the 23rd edition of Best Lawyers in America in the area of legal malpractice defense. He was also listed in the “Who’s Who” in the Memphis Business Journal and the 2016 Power Players list in Memphis Magazine and Inside Memphis Business in the area of business litigation. Mr. Glassman also began his term as President of the University of Memphis Cecil C. Humphreys School of Law Alumni Chapter.

B. Douglas Earthman is listed as a leading U.S. attorney in the area of real estate and secured lending in the Chambers USA 2016 guide.

1974

Richard C. Raines was listed as a leader in the area of Real Estate in the Chambers USA 2016 guide.

Larry Rice was chosen as a Top 100 lawyer in Tennessee by The National Advocates. He was also chosen as a Super Lawyer and will have his book, “About Divorce,” published by the ABA as a 5th edition.

R. Hunter Humphreys is listed as a leading U.S. attorney in the area of real estate and secured lending in the Chambers USA 2016 guide.

1977 1978

1973 Rehim Babaoglu was selected for inclusion in Best Lawyers in America for immigration law and for inclusion in Mid-South Super Lawyers in the field of immigration law as well.

Edward McKenney, Jr. was listed in the 2017 edition of The Best Lawyers.

Tommy Estes was included in the 23rd edition of The Best Lawyers in America 2017 in the practice area of trusts and estates. Pauline Weaver received the 2016 Judith Soley Lawyer as Citizen Award at the California Women Lawyers’ Annual Conference. She was also recently elected Chair of the Government and Public Sector Lawyers Division of the American Bar Association.

1979 Stephen Vescovo has received The Best Lawyers 2017 Workers’ Compensation “Lawyer of the Year in Memphis.”

James D. Wilson was listed in the 2017 edition of Best Lawyers.

Randall Womack is listed as a leader in environmental law in the Chambers USA 2016 guide. Hayden Lait was selected for inclusion in the 2017 edition of the Best Lawyers in America in the practice area of mediation.

1975 21

1980

Steven Douglas was listed in the 2017 edition of The Best Lawyers.

1981 1982

Charles C. Drennon, III was listed in the 2017 edition of The Best Lawyers. Linda Warren Seely was added to The Tennessee Bar Foundation as a West Tennessee representative on its Board of Trustees. Jonathan Kaplan, of the Littler Law Firm, earned a Band 1 ranking in the Chambers USA 2016 guide. Paul Prather, of the Littler Law Firm, earned a Band 1 ranking in the Chambers USA 2016 guide.

1985

1998 1999 2001

Rice Byars, Jr. was listed in the 2017 edition of Best Lawyers.

2003 2005

1992

Tony Thompson was recently ranked among the best lobbyists in Tennessee by Southern Political Report in their summer 2015 issue ranking top lobbyists in the Southern states.

1994

Shea Wellford served as President of the Memphis Bar Association in 2016.

Kirk Caraway has been selected by his peers for inclusion in The Best Lawyers in America in the area of Employment LawManagement. Tanja Thompson, of the Littler law firm, earned a Band 1 ranking in the Chambers USA 2016 guide. Tanja was also honored as a recommended lawyer in The Legal 500 United States 2016’s Labor Management Relations category. She was also elected to the American Bar Association’s Section of Labor and Employment Law Council.

Brian S. Faughnan has received The Best Lawyers 2017 Appellate Practice “Lawyer of the Year” award in Memphis. Allison T. Gilbert was listed in the 2017 edition of Best Lawyers. Karen B. Hall has joined the faculty of Memphis Theological Seminary as an adjunct professor.

Barbara B. Lapides was listed in the 2017 edition of Best Lawyers.

1988

1997

Heather G. Anderson has been selected by her peers for inclusion in the 23rd Edition of The Best Lawyers in America for her work in Employment Law — Individuals and Litigation — Labor and Employment. She was also named to the Public Building Authority Board in Knox County, Tennessee.

Michael Russell was recently elected a Fellow in the Tennessee Bar Foundation and also completed his term as the Chair of the Tennessee Bar Association Labor and Employment Section. Matthew J. Kirby was listed in the 2017 edition of The Best Lawyers.

Nick Rice was chosen as a Super Lawyer Rising Star, as well as being selected as “Top 10” by the National Academy of Family Law Attorneys. Lewis Lyons was named a Mid-South Super Lawyers Rising Star in the area of general civil litigation. Lewis was also recently rated AV-Preeminent by Martindale-Hubbell. Lauren Hill Glazier has been named Michael Aaron Staffing’s Division VP of Legal Search, specializing in staffing permanent and temporary legal talent for law firms and corporations throughout the Southeast U.S.

2007 2009

Katie Kiihnl Leonard has been named partner at Boyd Collar Nolen & Tuggle, an Atlanta-based divorce and family law firm.

Amber Floyd was selected as the winner in the Ace Associate category for the Memphis Business Journal’s inaugural “Best of the Bar” awards.

2010 22

ALUMNI NOTES

2012

Jessica Farmer Ferrante was named one of the 2016 Cystic Fibrosis Foundation’s Memphis Finest Professionals and was also appointed as a hearing committee member for the Board of Professional Responsibilities. Jennifer Haile-Ojwang was selected to serve as a member of the 67th Class of the Young Leadership Council in Nashville, Tennessee (Davidson County); and also as a board member of the Tennessee Women’s Theater Project.

2014

Hon. Robert L. Childers – Ex-Officio

Sam Ivy recently opened his own law office, Ivy Law PLLC, in Jackson, Tennessee.

Vickie H. Jones – Ex-Officio

William Terrell recently moved to Dubai in the United Arab Emirates (UAE) for a position with FedEx in international compliance.

David L. Pool – Ex-Officio

Tyler DeWitt, of the firm Monypeny DeWitt, was admitted to practice law in Florida. Steven M. Hinkes is legal support at the law firm of Shaw Kreizer, P.A., in its Boca Raton, Florida, office.

R. Hunter Humphreys – Ex-Officio Michael Joiner – Professional Education Committee Chair Hon. David S. Kennedy – Ex-Officio Tanja L. Thompson – Ex-Officio Penina K. Wender – Pillars and Scholarship Committee Chair Todd V. Williams – Alumni Relations Committee Chair Robert E. Craddock, Jr. Hon. George R. Ellis Tannera G. Gibson Mary B. Hackett Hon. Deborah M. Henderson Shannon M. Holland John I. Houseal, Jr.

Roxy Rudolph joined Wolff Ardis, PC in September 2016 after spending a year clerking for the Honorable Camille R. McMullen on the Tennessee Court of Criminal Appeals. At Wolff Ardis, PC, Roxy practices in the area of civil litigation with a primary focus on products liability matters.

Kevin D. Hudson

Meagan O. Jones began her position as a clerk for the Honorable Chief Judge David S. Kennedy.

Todd Presnell

Preston Battle joined the law firm of Baker Donelson as an associate attorney.

Karl A. Schledwitz

MK Smith joined the law firm of Baker Donelson as an associate attorney. Sarah Smith began her position as a Judicial Law Clerk at The United States District Court for the Western District of Tennessee.

Edward L. Brundick, III – President-Elect Hon. Gina C. Higgins – Judicial Committee Chair

Ethan R. Page has become an associate at the law firm of Rogers, Kamm & Shea.

2016

Richard Glassman – President

Jennifer (Vallor) Ivy recently joined the Employment Litigation Practice Group of Rainey, Kizer, Reviere & Bell PLC in Jackson, Tennessee.

Trey Ball recently joined the firm of Evans Petree PC as an associate.

2015

The University of Memphis Cecil C. Humphreys School of Law welcomes the 2016-17 Law School Alumni Chapter Board Members and Officers:

Hon. Christy Little Bobby F. Martin, Jr. Chaz Molder Ted C. Raynor Hon. Valerie L. Smith Robert D. Van de Vuurst Pauline A. Weaver Martin W. Zummach

CECIL C. HUMPHREYS SCHOOL OF LAW CHAPTER

A special thank you to immediate past-president David L. Pool for his service as the 2015-16 Law School Alumni Chapter President.

FACULTY ACCOMPLISHMENTS Lynda Black

Andrew McClurg

Professor Black gave a presentation at St. Mary’s College of Law

Professor and Herff Chair of Excellence Andrew McClurg has

in San Antonio earlier this year. The presentation was titled,

co-authored with Professor Brannon Denning (Cumberland

“Sacrificing Students on the Altar of Athletics: What We Have

School of Law, Samford University) a new casebook, “Guns

Learned from O’Bannon v. NCAA.”

and the Law: Cases, Problems, and Explanation” (Carolina

Janet Goode

Academic Press 2016).

Professors Janet Goode and Lisa Geis held a joint session with

Steven Mulroy

students participating in both the Medical Legal Partnership Clinic

Professor Mulroy had an adapted version of his Case Western

and the Children’s Defense Clinic, as well as medical residents

Reserve Law Review article, “Fourth Amendment Whack-

from Le Bonheur Children’s Hospital at the National Civil Rights

a-Mole: The Surprising Persistence of the Constitutionally

Museum earlier this year. The session focused on cultural

Problematic 48-Hour Holds,” published by Case Text.

competency and awareness. Peter Letsou

Professor Mulroy’s article, “Coloring Outside the Lines: Erasing ‘One Person, One Vote’ and Voting Rights Act Dilemmas By

Dean Letsou made a presentation on juvenile justice reform

Erasing District Lines,” was accepted for publication in the

to the Tennessee Indigent Defense Task Force at its meeting in

Mississippi Law Journal.

Memphis in April; moderated a panel discussion on the 1866 Memphis Massacre at the National Civil Rights Museum in May;

Additionally, Professor Mulroy’s article, “The Paperless Chase,”

participated in a panel discussion on juvenile justice reform in

was accepted for publication in the Touro Law Review.

Shelby County at the 2016 National Juvenile Justice Network Forum held at the University of Memphis Law School in July; and

John Newman

spoke on the state of legal education to the Howell Edmunds

Professor John Newman recently gave a talk-plus-Q&A to a

Jackson Inn of Court in Jackson, Tennessee, in September.

working group of U.S. Senate policy staff in Washington, D.C.

D.R. Jones Professor Jones presented a paper topic, “Edicts of Government: Copyright and State Laws” at the 2016 Works-Progress Intellectual Property Colloquium (WIPIP) held at the University of Washington School of Law and at the 2016 Intellectual Property Scholars’ Conference (IPSC) held at Stanford University School of Law. Professor Jones was also an invited participant in the 2016 Privacy Law Scholars’ Conference held at George Washington University

on digital competition policy. He was also a panelist at a conference put on by George Washington University and The Capitol Forum on dominant-platform policy in the U.S. and E.U. He also presented to the faculty at Fordham University as part of their Faculty Workshop Series. David Romantz Professor Romantz moderated a panel at the Legal Writing Institute’s biannual conference in Portland, Oregon.

School of Law.

Daniel Schaffzin

She also was appointed to serve on the American Association

Professor Schaffzin’s article, “(B)light at the End of the Tunnel?

of Law Libraries’ Digital Access to Legal Information Committee (DALIC), a national committee. She served as chair of the DALIC State Online Legal Information sub-committee. Boris Mamlyuk

How a City’s Need to Fight Vacant and Abandoned Properties Gave Rise to a Law School Clinic Like No Other,” has been accepted for publication by the Washington University Journal of Law and Policy.

Professor Mamlyuk has a forthcoming book chapter titled,

Katharine Schaffzin

“Decolonization as a Cold War Imperative: Bandung and the

Professor Schaffzin’s article, “Remaining Relevant:

Soviets,” in “Bandung, The Global South, and International Law:

Reconsidering the Federal Rules of Evidence in Light of

Critical Pasts and Pending Futures.”

Alleged Obsolescence,” will soon be published in the Journal of Litigation. 24

is possible. I began to suspect at some point in my own adulthood that in pursuit of Dr. King’s colorblind ideology, we fooled ourselves in believing that the content of our character can truly be viewed with racial blinders. This query seems important given that a number of contemporary socio-scientific studies suggest that the “colorblind” ideology we have long aspired to might be impossible. Like many Americans growing up, I was programmed in school and other public environments to “not see color” and “only see people.” However, social and psychological scientists suggest that we each possess some level of unconscious bias against individuals belonging to different demographical groups from our own, or “outgroups,” no matter how well intended we might be. Social and psychological scientists formally refer to such unconscious biases as “implicit social cognition” or “implicit bias associations.” Research in this area combines related social, psychological and neurological science principles to study the effect of unconscious biases on human decision-making.

UNCONSCIOUS BIAS & OUR

COLORBLIND IDEOLOGY By Professor Demetria Frank The epic words of Dr. Martin Luther King, Jr.’s, “I Have A Dream” speech have served as the baseline ideology by how we improve race relations in the United States. Indeed, the following single quote has been used as the litmus test of how we should treat one another: “I have a dream that my four little children will one day live in a nation where they would not be judged by the color of their skin, but by the content of their character.” Over 50 years later, we find ourselves in a culture of living out loud, sensational news and social media activism. We generally know more about one another’s views, beliefs and values now more than ever. Given all that we have recently learned, however, I am curious whether Dr. King’s four children — now middle-aged — continue to believe that their father’s “colorblind” ideology 25

If we accept the implications of unconscious bias research, however, we must also accept the reality that that colorblindness is likely unobtainable. Unconscious bias research instructs that we not only hold an “in-group” preference implicit in our thinking, but we also tend to think of our own groups in a more positive manner generally and especially relative to other groups. Similarly, and unfortunately, we tend to harbor unconscious negative associations toward out-groups based on knowledge of stereotypes related to that out-group.

It is merely our brain’s automatic tendency to make sense of the world by employing mental shortcuts for survival and processing purposes.

In many life scenarios, this is okay. It is merely our brain’s automatic tendency to make sense of the world by employing mental shortcuts for survival and processing purposes. Although unintentional, however, the existence of these unconscious biases has harsh implications for social groups generally in subordinate positions of power. For example, a male business executive who holds unconscious negative biases against females in the workplace might be less likely to interview, hire and promote female candidates when compared to males with similar qualifications. The unconsciously biased executive might also be more critical of the quality of work of female employees. Even if he believes his decisions are genderneutral, implicit bias research suggest that the executive does not have the ability to remain “gender-blind” in his decision making in each of these employment settings. No matter the executive’s intentions, his experiences, culture, education, and social landscape have directed his biases on females generally and consequently his decisions involving females in the workplace. Such decision-making, affected by unconscious biases, can be demonstrably far reaching when viewed collectively across individuals in various organizations in positions of power. Despite our colorblind aspirations, examples of unconscious biases exist in just about every important facet of life for racial minorities, including but not limited to: healthcare decisions, education, banking/lending, housing, media portrayals, law enforcement and the criminal justice system generally. Given this catalogue of disparity, and the ability of unconscious biases to affect decision making, bias association research should be instructive in developing policies that aim to reduce systemic disparate treatment of diverse groups. For example, bias association research suggests that judges and jurors both exhibit biases in courtroom decision-making to the detriment of racially diverse defendants, especially Blacks and Latinos. In an article recently published in the Harvard Journal on Racial & Ethnic Justice, I explain that the great risk of negative unconscious bias against black Americans requires routine exclusion of prior convictions and other bad

acts committed by defendants in criminal trials. Such evidence likely prejudices all defendants, but especially black criminal defendants due to negative associations between blacks and illegal behavior. In light of bias research, adopting a policy leaning heavily toward excluding prior convictions of defendants would lead to more fair trials as well as more consistent and predictable results for litigants generally.

Equally important, this approach acknowledges the reality that black criminal defendants are disparately impacted under the current legal regime and removes our “color blinders” on this particular issue in the law. Equally important, this approach acknowledges the reality that black criminal defendants are disparately impacted under the current legal regime and removes our “color blinders” on this particular issue in the law. Recent events and implicit bias research both suggest that, in a court of law or otherwise, we have a long way to go before judging one another solely on the “content of our character” as Dr. King infamously dreamed over 50 years ago on behalf of all Americans. Despite what our eyes clearly see, and our culture has subliminally taught us, the difficulty of addressing the issue of race head-on has conveniently facilitated our utopian policy on race relations, to simply “not see race.” In a country where race once mattered more than anything, the daunting truth of our likely inability to be colorblind is upon us if we wish to improve race relations in America. Like our mentality, our policies must also overcome the simplistic prescription of colorblindness. In light of implicit bias association research, turning a “colorblind eye” to existing legal and social disparities is a missed opportunity to develop faith in our legal system in racially diverse communities and right some of wrongs of the past.

Continued from page 14 “The Fourteenth Amendment only requires that distinctions based on wealth be rationally related to a legitimate government purpose,” Clement argues in his brief, and Calhoun’s bail system is “eminently rational” because it is geared to making sure the accused shows up for trial. “If plaintiff’s theory were correct, the Eighth Amendment would read: ‘no bail shall be required,’” the brief adds. Clement is representing the American Bail Coalition, the Georgia Association of Professional Bondsmen and the Georgia Sheriffs’ Association. Even closer to home, Davidson County District Attorney Glenn Funk, in a September 2016 interview with the Nashville Scene, said that he does not favor eliminating money bail entirely, because he believes it is needed to make sure defendants don’t “jump bail.” In the article, however, Funk stated that he is “certainly open to having a system where a court may determine the community will be protected if someone is released without bail.”

The Rise of Charitable Bail Funds The very first charitable bail fund in America did not put up bail for a single person. Instead, it convinced judges to release scores of the accused without bail. The Manhattan Bail Project started in 1961. Three years later, more than 3,000 people were released without bail based on the recommendations of the project administrators. Only 1.6 percent of those recommended for release without bail failed to make their court appearances. The Manhattan Bail Project was the seminal work of the Vera Institute of Justice — a criminal justice reform organization still operating today. It partners with local, state and national government officials to provide research and recommendations for systemic change. Currently, Vera is working on projects in 40 states, including Tennessee. The outcomes of Vera’s work in 1961 were so impressive that the mayor of New York City made the Manhattan Bail Project a function of the city’s probation department. President Johnson

credited Vera with providing the foundation for the Bail Reform Act of 1966. The charitable bail funds that have cropped up in the past decade are similar to the Manhattan Bail Project in their desire to ultimately drive systemic change. But modern bail funds are faced with another reality — they must also post bail. The Bureau of Justice Statistics reports that since 1998, judges have become more likely to require money bail for release. The change can be attributed to largely unfounded concerns from judges and the public that a person released on his own recognizance will commit another crime or fail to appear in court. Additionally, the growing prevalence of commercial bail bond companies has given assurance that the accused and their loved ones have greater access to bond money, provided at a fraction of the actual bond. Even though these bonds and the fees that go with them can drive poor families into deeper and deeper debt. As accessibility to bail bonds has expanded, so have the amounts judges set for bail, with the knowledge that the accused will only pay a fraction of the entire amount. It’s a vicious cycle, in which access to loans have led to more bail requirements and higher bail amounts. 26

When Josh Spickler was an assistant public defender for Shelby County, he visited the Bronx Defender’s Center for Holistic Defense where the Bronx Freedom Fund was created. Spickler, like so many of his fellow public defenders, knew too well the frustration of seeing clients languishing in jail simply because they were too poor to post bond. He knew then that this was something Memphis desperately needed.

A 2013 study found that the norming effect of requiring bail more often and in greater amounts may have the unintended consequence of actually making a community less safe. During a one year time period, researchers collected data on more than 150,000 defendants booked into a Kentucky jail. They looked at the length of pre-trial detention and examined the risk of defendants failing to make court appearances and committing new crimes before their trial. They also looked for any links between pre-trial detention length and the risk of committing crimes after the case was disposed.

When Spickler became the Executive Director of a new criminal justice reform nonprofit in July of 2015, he wanted a bail fund to be one of Just City’s first endeavors.

The study found that the longer a person was held in detention before a case was decided, the greater the risk he would fail to appear for his court date, commit a new crime before his court date or commit new crimes after the case was disposed. The likelihood for these unfavorable outcomes is even greater for low-risk defendants kept in pretrial detention. Josh Spickler (JD ’00)

The Bronx Freedom Fund has worked to lower these risks. Since its inception in 2007, the fund has bailed out 600 people. Ninety-six percent have shown up for their court appearances. Even more compelling is the data that shows more than 50 percent of those bailed out through the Bronx fund had their charges dismissed. That’s 300 people who may otherwise have pled guilty simply because they wanted to go home but could not afford bail. The Bronx Freedom Fund is the oldest charitable bail fund operating today. In 2012, The Brooklyn Community Bail Fund was started and last year, the Chicago Community Bond Fund launched. 27

Students from Yale recently set up a charitable bail fund in Connecticut and funds in Boston and Seattle have launched in recent months. Organizers in Miami, St. Louis and Austin are also exploring options for similar funds. When Just City of Memphis attempted to launch the sixth and seventh community bail funds in the country earlier this year, it found that removing money from the scales of justice … isn’t easy.

Building a More Just City “If we still have bail funds in Tennessee in 10 years, we will have failed,” said Josh Spickler (JD ’00), Executive Director for Just City.

“While Memphis and Shelby County have a wellmanaged jail, there are still a large number of people in the jail at any given time only because they cannot afford to post bail,” said Spickler. “Many of them are charged with low-level, nonviolent offenses and held on bonds of $5,000 or less. Instead of quickly returning to their homes, families, jobs and classrooms; however, they are held an average of eight days. Based on this and other research, we knew a bail fund would provide critical relief for many people in Memphis and had the potential to save taxpayer dollars at the same time.” Charitable bail funds are supported by donations from the community. As long as bail fund clients return to court as directed, the cash bail is returned to the fund and used to support future clients. Because the vast majority of clients make their court appearances, these funds can be sustained with minimal additional donations once they are fully funded.

That is happening with Just City’s bail fund effort in Nashville. The manager of the Nashville Community Bail Fund identifies a client, posts bond and once the client makes his appearance, the amount of the bond is returned to the fund. But when Just City launched the same program in Memphis earlier this year, the system failed to sign off on a key element of the revolving fund — an agreement that would prevent additional court fines and fees placed on the defendant from being automatically deducted from the bond amount. Without an agreement in place, the fund could quickly be depleted by these additional fees. For now, the Memphis fund has been suspended. Recent University of Memphis Law School graduate Sarah Smith (JD ’16) was hired by Just City to research and design the Memphis and Nashville charitable bail funds. Smith traveled to New York City to learn more from the place where this idea was born and where the most successful funds in the country are running. She learned a great deal from both the Bronx Freedom Fund and the Brooklyn Community Bail Fund about what is required to set up a charitable bail fund, but she learned something about bail in New York compared to Tennessee.

“The most surprising thing for me was the difference in bond amounts in Tennessee versus some of the other fund operators I spoke to. We have a much higher average bond set in misdemeanor cases in Tennessee,” said Smith. “The most surprising thing for me was the difference in bond amounts in Tennessee versus some of the other fund operators I spoke to. We have a much higher average bond set in misdemeanor cases in Tennessee,” said Smith. “We also have a much lower rate of individuals being released, either supervised or not, without bond set, referred to as being ‘released on your own recognizance.’ The sheer number of people

in Tennessee charged with a minor offense given unaffordable bail is shocking.” Smith still believes that Memphis, Nashville, and communities across the state will eventually benefit from the lessons still coming out of New York City. In addition to the existing community bail funds in the Bronx and Brooklyn, Mayor Bill De Blasio’s office has instituted an initiative called Bail Lab, which is focused on researching best bail practices in the hopes of reducing the usage of bail for minor offenses and misdemeanors at least in part, if not entirely. Smith says their research shows that bail alternatives, such as supervised pre-trial release or just texting reminders for court dates, lead to much stronger outcomes.

Memphis, the ultimate goal is to put themselves out of the bail “business.” But it won’t be an easy fight. “The bail bond industry holds a tight grip on legislative bodies throughout the state, including the General Assembly,” said Spickler. “I expect any statewide efforts to reform the money bail system will be met with stiff resistance.” He’s convinced, though, that in the end, justice will prevail. Not only because people are coming to see abolishing money bail as the right thing to do, but because the evidence shows there are better ways.

“Bail alternatives not only lead to better outcomes for individuals, but potentially save the city an enormous amount of money,” said Smith. “The cost of incarceration is high on both the individual and the government funding their stay.” “Bail alternatives not only lead to better outcomes for individuals, but potentially save the city an enormous amount of money,” said Smith. “The cost of incarceration is high on both the individual and the government funding their stay.” Five months after its launch in May of 2016, Just City had provided bail for 18 people. As of this writing, only one client has failed to appear for court — and his case was dismissed. In this time, Just City has found exactly what it expected. In both cities, the majority of its bail fund clients were charged with either theft or a driving offense. These are low-level, non-violent offenses, yet the average bond posted by the Fund (in Nashville) is more than $4,000. While Smith and Spickler hope that Just City will eventually be able to resume a bail fund in Sarah Smith (JD ’16)

After her husband died, Shayne returned to Nashville in 2000. Again, she sought tutoring opportunities in public schools. She imagined her philanthropic work would be in education.

“Our local pre-trial agencies are very good at using evidence-based tools to assess the risk of flight and the risk to public safety of those we arrest,” said Spickler. “We can use the 40 years’ worth of data we have collected and create a system that is not based on means but instead is based on evidence. Money bail has no place in this system. It is not fair, and it is not cost-effective.”

The System is So Rigged Joan Shayne grew up in 1930s Nashville — white and in the wealthy community of Belle Meade. Her family owned a factory and sometimes she’d accompany her father there. The drive would take her through neighborhoods unlike her own. In the segregated South, it marked the few times she would encounter people who were poor and black.

“There was no racial mixing,” said Shayne. “I knew I had privileges that they didn’t, and it wasn’t that I was any better, smarter or whatever. I just had privileges. I knew it wasn’t right.” “There was no racial mixing,” said Shayne. “I knew I had privileges that they didn’t, and it wasn’t that I was any better, smarter or whatever. I just had privileges. I knew it wasn’t right.” Shayne would go to college in the Northeast. She married, lived in New York City and found the separation of races no different there. But Shayne was always drawn to education and helping children. So she tutored in schools in Harlem.

But in her 80s, Shayne was introduced to the work of Michelle Alexander — the civil rights lawyer and legal scholar who wrote the book that has become a revelation to countless people: “The New Jim Crow: Mass Incarceration in the Age of Colorblindness.” Alexander argues that the mass incarceration of black people in America has destroyed much of the racial progress gained during the Civil Rights movement. The criminal justice system is the new Jim Crow. Shayne was stunned. Through lectures at Vanderbilt University and reading articles, she learned more. Mostly, she discovered how blind she had been to what was happening to millions of people in our country, and how entrenched the racial and class disparities within the criminal justice system had become. Also troubling was that in living a life of comfort and privilege, she and nearly everyone she knew, were unaware it was even happening. “I realized that I did not know what a felon was,” said Shayne. “I didn’t know a felon couldn’t vote, I didn’t know a felon couldn’t live in public housing, I didn’t know a felon couldn’t get welfare, I didn’t know any of that. I think that was just part of what I found impossible to believe. How on earth can you ever come out, if you are completely cut off? The system is so rigged.” Shayne wasn’t sure where to start. The problems within the criminal justice system seemed so big and intractable. But she felt compelled to do something. Her parents had always been involved in charitable work. Her mother was someone she describes as a “doer.” Then, Shayne found out about charitable bail funds. Shortly after, she met Nashville Chief Public Defender Dawn Deaner. Before meeting Deaner, Shayne admits she didn’t even know what a public defender was or the high caliber of lawyers that practice public defense. These days, she can’t speak highly enough about their work. Deaner connected Shayne with Just City. Soon after, Shayne and other Nashville philanthropists

joined to fund the Nashville Community Bail Fund — the first such fund in the South. She knows this bail fund won’t solve mass incarceration. Shayne knows it won’t even make a dent in Nashville’s jail population. But she believes it’s a spark.

“The bail fund is a small thing,” said Shayne. “But you don’t know where something small goes. You see what you can do … and hope it catches on.” “The bail fund is a small thing,” said Shayne. “But you don’t know where something small goes. You see what you can do … and hope it catches on.”

A New Age of Criminal Justice Reform The criminal justice reforms of the 60s took place at the highest levels of our government through acts of Congress and Supreme Court rulings. Today, these reforms are happening at high levels, but the effects are less sweeping. Such as President Obama issuing pardons for nonviolent drug offenders and Department of Justice (DOJ) actions on bail, policing and juvenile justice. Most notably for Memphis, the DOJ investigation of the Shelby County Juvenile Court for Equal Protection and Due Process violations. Since 2013, Shelby County and the Court have been working under a Memorandum of Understanding with the Civil Rights Division of the DOJ to assure that children, particularly black children, are treated fairly once brought to Shelby County Juvenile Court. State legislatures across the country are also implementing comprehensive criminal justice

reforms intended to reduce the size and reach of the justice system. These bipartisan efforts are focused on fiscal responsibility, reduction of racial disparities and stemming the perceived encroachment on civil liberties. In the past two years, Tennessee has assembled three task forces to recommend comprehensive criminal justice reforms. So far, though, the only task force to conclude its work has introduced legislation that increased prison sentences. Recent bipartisan reforms at the Congressional level looked promising for 2016, but were thwarted by the contentious presidential campaign. Sponsors promise to revive this legislation once the election is decided. Corporate players as unlikely as Charles and David Koch, the billionaire funders of conservative issues and candidates, have become outspoken and dedicated advocates of criminal justice reform. Last year, companies such as Google, Starbucks, and American Airlines signed on to a White House initiative to eliminate barriers to hiring people with criminal records. Add to that the millions of Americans, many who have had little contact with jails or bail, learning about deep inequities in the criminal justice system through bestselling books like the “New Jim Crow” and Bryan Stevenson’s “Just Mercy.” The power of this message has inspired many readers to speak out and act.

Across the country, the Black Lives Matter movement is growing from Ferguson, Missouri, to Memphis, demanding changes to policing practices. What has become an all too steady flow of videos documenting tragic encounters between African Americans and law enforcement has added to a building sense of immediacy.

The activity igniting around criminal justice reform at every level of society is resulting in heightened awareness of a system that until recently was out of sight and mind for many Americans. Will this be enough to change the practices and culture of a country that imprisons more of its citizens than any other nation in the world?

As is the case with the broader criminal justice reform movement, the most striking aspect of this new age of bail reform is taking place at the grassroots level — a small nonprofit driving system change suing county after county, the establishment of relatively modest funds to bail out individuals, and senior citizen philanthropists raising money and awareness to put a dent in the jail population. The activity igniting around criminal justice reform at every level of society is resulting in heightened awareness of a system that until recently was out of sight and mind for many Americans. Will this be enough to change the practices and culture of a country that imprisons more of its citizens than any other nation in the world? “So many areas of our criminal justice system, they just couldn’t exist in this current form, if all of the constitutional rights that are supposedly set forth in the Bill of Rights were actually followed,” said Karakatsanis. “They just couldn’t exist.” For those who fight money bail from within and outside the system, the hope is that one day, this is one challenge to the Constitution that will cease to exist. * Lurene Kelley currently serves as a Special Assistant for Organizational Communication in the Law Offices of the Shelby County Public Defender.

Continued from page 18

Mississippi, Indiana, Missouri, Kansas, Tennessee and Colorado, according to the sports legislation tracker at LegalSportsReport.com.

Schneiderman said those ads were deceptive and lured consumers into an unregulated, online gambling operation that, while marketed as a game anyone can win, distributed most of the winnings to a small set of experienced, sophisticated players.

But daily fantasy sports legislation either failed or is on hold in Vermont, Connecticut, Maryland, West Virginia, South Carolina, Florida, Georgia, Alabama, Louisiana, Kentucky, Oklahoma, Illinois, Wisconsin, Minnesota, Iowa, Nebraska, New Mexico, Arizona, Hawaii and Washington.

Schneiderman said about one percent of the players on both sites won most of the money. On the DraftKings and FanDuel sites, players could play any game against anyone and they often did. So, this would often pit the starry-eyed, casualplaying, low-betting newbie against a “shark,” a player who played in bulk, bet a ton of cash, had the best intel on players, and loved to gobble up the lunch money from those starry-eyed newbies.

Active legislation for daily sports fantasy already exists in New Jersey, Pennsylvania, Michigan, and California, according to LegalSportsReport.com. However, little of this has stopped daily fantasy sports. It is only considered illegal (with no game play allowed) in 10 states, Washington, Montana, Idaho, Nevada, Arizona, Hawaii, Louisiana, Iowa, Alabama and Delaware.

The sharks had tech on their side, too. Many of them would use computer scripts (programs that automate and execute certain tasks automatically) to crunch the latest stats on athletes to make lastminute changes to their dozens of rosters, helping ensure wins on most of their daily fantasy sports bets. But that David-versus-Goliath aspect wasn’t all that was troubling legal minds — including attorneys general in several states — about the daily fantasy sites. Minors were playing. Employees from FanDuel and DraftKings were playing on their own sites and each other’s. There was no net to help out daily fantasy sports gambling addicts. The companies weren’t licensed in the states, nor were they paying taxes there. Attorneys general in Texas and Illinois joined New York’s Schneiderman and labeled daily fantasy sports as “illegal gambling.” At the same time, DraftKings, FanDuel and the FSTA had organized a 27-state push for legitimization. The first success for that push was in Virginia. In March, Virginia Gov. Terry McAuliffe signed into law the “Fantasy Contests Act.” It gave the Virginia Department of Agriculture and Consumer Services oversight of the daily fantasy sports industry with fees and teeth. Operators would pay $50,000 and infractions in the new rules would come with investigations and penalties. Virginia state Senator Ryan McDougle said (in a news release issued by FanDuel), passage of the 31

Tennessee gets in the game

Professor Lee Harris

act was “an important day for the future of fantasy sports.” “Virginia is leading the way in establishing strong consumer protections while sending a clear message that, with the proper oversight, playing fantasy sports is a skill-based hobby people should be allowed to enjoy,” McDougle said. “Although it is already legal to play fantasy sports in Virginia, this legislation provides additional consumer safeguards.” Cory Fox, FanDuel’s counsel for policy and government affairs, said Virginia leaders “took a thoughtful and deliberative approach” in establishing the law. “Virginia showed real leadership in being the first state to pass smart regulations this year and we hope to see more states follow Virginia’s lead in the months ahead,” Fox said. A similar scene played out in statehouses last spring and summer in Massachusetts, New York,

Here in the Volunteer State, the daily fantasy sports debate mainly centered on the money, the law and the lottery (with a sprinkling of criticism about corporate greed). But it seemed the details of the deal were less important for lawmakers than that one important question they’d have to face back in their districts: Was daily fantasy sports a game of chance (gambling) or a game of skill? And the answer rested on a knife-edge. Consider this nuanced explanation of that legal seam between skill and chance from Sen. Lee Harris, a law professor at the University of Memphis, who voted to approve the bill back in April. “My understanding is that there could be some skill associated with fantasy sports, like drafting a team, knowing when to play certain players, and making mid-season trades,” Harris said. “However, fantasy sports success is still reliant upon the actual sport matches played and the vagaries of player performance. It involves chance. That is, in fact, one of the primary reasons folks watch the games, because they are impossible to predict with accuracy.” The bill, called the “Fantasy Sports Act,” was filed in the House and Senate on January 21. It was

carried in the House by Shelbyville Republican Pat Marsh, owner of the Big G Express trucking company. Franklin Republican Jack Johnson, who owns a number of small community markets in Middle Tennessee, sponsored the legislation in the Senate.

Marsh faced the House Government Operations Committee the very next week and Rep. Mike Sparks (R-Smyrna) got right to the point.

Marsh sounded none too confident in March when he explained his bill to a subcommittee of the House Business and Utilities Committee. He stumbled over the words “daily fantasy sports” like a man who’d seldom even heard them, much less had ever played the game. But he explained for the first time that about 1 million Tennesseans play fantasy sports (it became a staple of his presentations to his colleagues) and his bill was, mainly, to offer them some consumer protections.

Marsh reported eagerly that he had “run the bill through the attorney general’s office” and it was all clear there. Even if it were, Marsh, it seemed, had some pretty heavy legislative precedent to lean on.

As it was drafted at the time, the Fantasy Sports Act would: Give a tight legal definition of fantasy sports (one given the blessing of Attorney General Slatery). Set the age limit of play at 18. Prohibit employees at daily fantasy sports companies from playing the game. Prohibit athletes, and sports officials (or others with confidential information about players, like injuries) from playing the game. Separate highly skilled players from newbies, to even the odds of winning. Give the Tennessee Secretary of State the power to enforce the legislation, oversee the companies, and ensure they register as business entities in the state. Offer resources for gambling addiction. Prohibit players from using computer scripts. Daily fantasy sports were a game of skill, Marsh argued, as players use their knowledge of teams and player to win, pointing to a study confirming the argument from the Massachusetts Institute of Technology and the University of Chicago. Further, sports teams like the Memphis Grizzlies, the Nashville Predators, and the Tennessee Titans, had sponsorship deals with some of the companies (FanDuel and DraftKings, mainly).

“I don’t know much about gambling,” Sparks said. “Is this a gambling bill? I’ve got to ask.”

“A lottery is illegal but we’ve passed a bill in the legislature to legalize our lottery,” Marsh said. “(The attorney general’s) office is saying (daily fantasy sports) is not a lottery that’s illegal. This is a game of skill.” The same argument was presented that day by FanDuel and DraftKings lobbyist Scott Ward, who serves as government affairs counsel for the multi-national law firm Orrick. The companies had enlisted him to help in its 27-state push for legalization. “We firmly believe this is not gambling but a game of skill,” Ward said to committee members. “A skilled player will beat a non-skilled player. You get better over time. I don’t play but I know it takes research and time to get good.” During that March committee hearing, Ward sat beside Mary Beth Thomas, general counsel for the Secretary of State’s office. She said if the new rules were passed, companies operating daily fantasy sports contests would apply for a license and be charged an annual fee. Also, a third-party audit would check the company’s books for Tennessee, to see how many accounts players have and see how much money the companies have on deposit. If they didn’t follow the rules, their licenses would be revoked and would be subject to penalties under the Consumer Protection Act, regulated by the attorney general’s office. To do all of this, Thomas said her office would need an investigator on staff. The details were all fine and good but Knoxville Republican Rep. Jason Zachary wanted to talk, again, about gambling. “If this isn’t gambling, then why are gambling addiction resources included in the bill?” Zachary asked.

Ward responded to Rep. Zachary first by meandering around the point, again, that daily fantasy sports are games of skills. He, then, pointed out that RotoGrinders, a daily fantasy sports research firm, was based in Nashville and supported about 20 employees. But as far as resources for gambling addiction, that language came from the AG’s office, he said. But, again, daily fantasy sports are games of skill and there were no major problems (that he knew of) on gambling addiction in daily fantasy sports.

A skilled player will beat a non-skilled player. You get better over time. I don’t play but I know it takes research and time to get good.” Ward said. Still, Rep. Sparks pointed to a Frontline story that cited two people addicted to daily fantasy sports and online gambling. Ward said the two men in the story were the only two people he was aware of with gambling problems related to daily fantasy sports. Also, he reminded Sparks that the proposal did provide responsible-play provisions. Further, people “can be addicted to all sorts of things — your phone, shopping.”

A quick note on gambling addiction Very few sports gamblers are present at The Gambling Clinic, run out of the Psychology Building on the University of Memphis campus. Rory Pfund, a doctoral student who works at the clinic, says the clinic is more apt to see casino gamblers. Though few empirical studies have been conducted on the sport gambler, Pfund said, it it is generally accepted that there are fewer of them with addiction problems than those playing casino games. He said he’s not sure whether or not legalizing daily sports fantasy sites like FanDuel and DraftKings will be bad for sports gambling habits.

Gamblers all present differently at his clinic, Pfund said, and they tailor their treatment to them. But if they come at all, there’s usually a precipitating event.

“Thus, absent legislation specifically exempting fantasy sports contests from the definition of ‘gambling,’ these contests constitute illegal gambling under Tennessee law.”

“For example, maybe someone just suffered a large financial loss betting on sports and they are starting to think about change,” Pfund said. “Maybe a spouse has discovered that a joint bank account has been completely depleted, and they are threatening a divorce/separation.”

I think it’s false to say that people either spend their money on the lottery or fantasy sports,” Ward said. “They are very different games.”

Fantasy sports vs. the lottery The daily fantasy sports fight wasn’t the first time Tennessee lawmakers grappled with gambling. For seven years they fought in committee rooms and the House and Senate floors about whether or not to start a state lottery, which they did in 2003.

With his opinion, Slatery joined a rising chorus of attorneys general from across the country, all with basically the same opinion. It also emboldened Rep. Alexander, the lawmaker who wanted lobbyists for DraftKings and FanDuel to be seized by state troopers.

Tennessee lottery sales rose to nearly $1.5 billion from July 2014 to July 2015, according to state documents. Those sales made for a recordbreaking contribution — nearly $348 million — to the state’s education programs. To lawmakers this year, the lottery fight was over and it was doing great things. They did not want — and could not have — some fantasy sports game messing with that. “The lottery is fueled by discretionary income of the people playing it,” said Rep. Marc Gravitt (R-East Ridge) to Ward, the daily fantasy sports lobbyists and Thomas, counsel from the SOC’s office. “My question is, do y’all have an opinion on how the lottery would be impacted by people shifting their discretionary income to this type of play?” Thomas said she wasn’t sure but posited that one million Tennesseans were playing the games already, that is, had already spent their money on them, and figured legalizing fantasy sports would not have an impact on lottery revenues. “I think it’s false to say that people either spend their money on the lottery or fantasy sports,” Ward said. “They are very different games. People who play daily fantasy sports like the research, putting a puzzle together every day, or they just like doing it with their friends or colleagues. They like the smack talk and that’s something that you wouldn’t get with the lottery.” 33

Herbert Slatery

An “asinine” remark In the midst of the legislature’s debate on daily fantasy sports, Tennessee Attorney General Slatery dropped a legal bomb. He opined on April 6 that playing (and winning money) on daily fantasy sports, was “illegal gambling.” “While participants may use skill to select players for their teams, winning a fantasy sports contest is contingent to some degree on chance,” Slatery wrote. “Namely, the participants do not control how selected athletes perform in actuality on a given day. Athletes’ performances are affected by many fortuitous factors — weather, facilities, referees, injuries, etc.

“There are laws in Tennessee against promoting this kind of gambling,” Alexander said the day the opinion was published. “What we have up here are a lot of people promoting gambling. To my nonlegal mind, they are breaking the law. So, barring a different opinion from our legal counsel, I ask you, Mr. Chairman, to get a patrolman and (stop) them from breaking the law and promoting gambling.”

He argued that an unregulated industry looking to be regulated seemed suspect, like Br’er Rabbit pleading not to be thrown into the briar patch. But Rep. Todd did not agree. “No one has broken the law up here yet at all on this issue,” Todd growled. “I think that was a very asinine remark.” Doug Himes, attorney for the state’s nonpartisan Office of Legal Services, said if those lobbyists were on the Hill trying to sign up new players for FanDuel and DraftKings, then just maybe they were breaking the law, in light of the attorney general’s opinion. But lobbying for the bill was not illegal.

Aside from that one, extreme and bizarre interlude, the attorney general’s opinion did not seem to rock the debate on daily fantasy sports in Nashville. But Todd’s remark did not deter Rep. Alexander, who became the loudest opponent of the bill, from fighting on. A few days after he asked for the troopers, he said the money spent on fantasy sports would leave Tennessee, leaving a dent in the state economy. Further, he argued that an unregulated industry looking to be regulated seemed suspect, like Br’er Rabbit pleading not to be thrown into the briar patch. “If somebody comes to the state of Tennessee wanting us to regulate them, there’s a question in my mind of their ulterior motives,” Alexander said. “They probably don’t have the best interest of the taxpayer of state in mind. They have themselves in mind. “With our passing a bill like this, people think that the state of Tennessee is giving them their stamp of approval. I’ll just bet you that they believe they are going to make more money than they are now. I think this about money and I don’t think it’s about anything other than that.” However, the bill remained largely intact as it reached the House floor. But lawmakers did get their piece of the pie, though, adding a six percent tax on the profits that daily fantasy sports companies would make in Tennessee. The daily fantasy fight was quieter on the Senate side of the legislature. Some, like Rep. Mike Bell (R-Riceville) said lawmakers were “walking a fine line” on the gambling issue with the bill. Many Senators said they were familiar with daily fantasy sports, noted how hard it would be to outlaw almost anything on the internet, and they largely agreed that if a company came to them seeking regulation, they should give it. They were also concerned about how it might affect the lottery. More than that, though, Senators were concerned that 1 million Tennesseans were playing these games with no consumer protection. “If there was a company or a bad actor that (took advantage of Tennessee players), there’s no legal basis for the attorney general or anyone … to

address it,” said Johnson, the bill’s Senate sponsor. “Generally, the codes are silent on this.” The bills were passed on April 19, garnering one month of solid review from lawmakers. It was the first time that state lawmakers had overturned an attorney general’s opinion on daily fantasy sports in the country. So far, only Mississippi and New York have followed, according to LegalSportsReport.com.

The daily fantasy future Every Sunday morning during the NFL season, Bennett Doyle and his co-host Ben Hogan slip behind microphones at ESPN 790 AM for their Fantasy Kick-Off Show. From 11 a.m. to noon (right before kick-off), they survey the fantasy football landscape, they cover player injuries, and give their picks of the week. Listeners call in or tweet seeking advice on their rosters. They also have a daily fantasy segment where they talk about bargain players who could be scooped up that day.

“They wanted some of that revenue,” he said. “All of this money that’s going around in daily fantasy sports, they wanted to figure out how to get a piece of the pie, too.” Dozens of states will watch as Tennessee tax coffers fill (or don’t) with daily fantasy sports money and keep an eye out for gambling-related corruption here. But the questions on the mind of Northern Kentucky University law school Dean Standen is, “how many more states will follow and how many more attorney generals will file suit?” Tempering that debate, he said, will be that distaste Americans seem to have for sports betting and how it has stuck to daily fantasy sports, no matter how hard lobbyists try to pry them apart. “Until sports betting itself is legalized, if it ever is, I think people will look at daily fantasy sports as much the same or as a close cousin and will react accordingly,” Standen said. “We just have this American, almost-phobic reaction to the idea of betting on that subject.”

“Fantasy players are rabid fans and neither the review of the law in Nashville nor the Attorney General’s opinion on it slowed them down”, he said. “I think it upset a lot of people,” Doyle said with a laugh. “We were. That’s a big part of our show!”

Until sports betting itself is legalized, if it ever is, I think people will look at daily fantasy sports as much the same or as a close cousin and will react accordingly,” Standen said. “We just have this American, almost-phobic reaction to the idea of betting on that subject.” Rumors about the possible ban circulated among local fantasy players, and they were afraid that they’d lose these games they adored. To Doyle’s mind, the only reason state lawmakers got involved in the first place had nothing to do with consumer protection or help for problem gamblers. 34

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