Washington Law Review

Current Issue

Volume 96, Number 2 - 2021

Title Author Citation

 Health Care Fraud Means Never Having to Say You’re Sorry


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 Health Care Fraud Means Never Having to Say You’re Sorry

June 01, 2021 | 96 Wash. L. Rev. 371

Abstract: For decades, the Department of Justice (DOJ) has issued a steady flood of press releases announcing False Claims Act (FCA) settlements against health care entities and extolling the purportedly sharp message sent to the industry through these settlements about the consequences of engaging in wrongdoing. The FCA is the primary mechanism for government enforcement against health care entities engaged in wrongdoing, and it is expected to be DOJ’s key tool for addressing fraud arising out of government programs in response to the COVID-19 pandemic. DOJ has pointed to three key goals of its enforcement efforts (deterrence, incentivizing cooperation, and building a culture of compliance in the health care industry). However, careful examination of the settlements touted in those DOJ press releases calls into question whether DOJ’s settlement practices are conveying the message DOJ seeks to impart or having the impact it hopes to achieve.

Virtually all FCA cases resolve without requiring the defendant to admit wrongdoing, and many defendants issue explicit public denials of wrongdoing when the resolution is announced. The absence of any need to admit wrongdoing has fueled a cost-of-doing-business narrative in which health care entities are required periodically to pay inconsequential settlements to the government regardless of their conduct. DOJ thereby risks both diminishing the general deterrence value of resolutions and lending credence to the vocal skepticism among industry and the defense bar that DOJ could, in fact, prevail at trial.

DOJ’s willingness to allow settlements in health care fraud cases without admissions is diametrically contrary to DOJ’s policy in criminal cases, which is against permitting resolutions without defendants’ clear and unequivocal acceptance of responsibility for violating the law. Permitting no-responsibility settlements in the civil FCA context suggests both that DOJ pursues, illegitimately, weak cases it cannot prove at trial, and potentially weakens the general deterrence value of civil FCA claims in general. New defendants may be left with cover that they are not wrongdoers but are merely ensnared in an illegitimate money grab. Even defendants who frankly recognize that they are in violation of the statute may be comforted that they likely face paying little more than restitution, and no significant penalties or social opprobrium. These practices suggest that DOJ rewards willingness to settle, and the monetary recovery it brings, above all other factors. DOJ’s focus on settling and monetary recoveries in turn lends credence to the widespread belief that civil health care fraud settlements simply do not signal wrongdoing.

There is no law, policy, or practice that prevents DOJ from requiring admissions in FCA settlements. Yet an in-depth review of nearly 200 FCA resolutions involving health care entities over the past two years reveals that approximately 92% did not include defendants’ clear acceptance of responsibility, and approximately 37% involved defendants actively denying responsibility.

The absence of any DOJ policy favoring admissions has important negative consequences, undermining DOJ’s goals of deterrence, incentivizing cooperation, and building a culture of compliance. First, when corporate actors believe DOJ will pursue claims regardless of wrongdoing and the consequences of even a settlement will be relatively painless from a financial and reputational perspective, those actors have reduced incentive to put in place compliance structures dedicated to preventing wrongdoing. Second, and perhaps more importantly, when corporate actors diminish the force of settlements with DOJ by denying responsibility, they undermine the system’s legitimacy vital for DOJ to encourage cooperation and for the government and well-meaning corporate actors to cultivate an industry-wide culture of compliance. This Article examines DOJ policy both from an economic incentive perspective and in light of research surrounding the psychology of legal authority, concluding that under both lenses DOJ undercuts its own goals. With DOJ actively reforming FCA policy and the FCA poised to take center stage in the government’s fight against COVID-19 program abuse, it is beyond time to address this gap in DOJ’s enforcement policy.

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Jacob T. Elberg 96 Wash. L. Rev. 371

 Beyond “Children Are Different”: The Revolution in Juvenile Intake and Sentencing


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 Beyond “Children Are Different”: The Revolution in Juvenile Intake and Sentencing

June 01, 2021 | 96 Wash. L. Rev. 425

Abstract: For more than 120 years, juvenile justice law has not substantively defined the core questions in most delinquency cases—when should the state prosecute children rather than divert them from the court system (the intake decision), and what should the state do with children once they are convicted (the sentencing decision)? Instead, the law has granted certain legal actors wide discretion over these decisions, namely prosecutors at intake and judges at sentencing. This Article identifies and analyzes an essential reform trend changing that reality: legislation, enacted in at least eight states in the 2010s, to limit when children can be prosecuted rather than diverted, and when and for how long they may be incarcerated or kept on probation based on the specific offense alleged or adjudicated.

These reforms are a sharp turn for juvenile law. Contrary to the field’s long emphasis on discretionary decisions not legally tethered to specific offenses, the reforms depend on the charges alleged or proven against a child, and limit judges’ authority at disposition and prosecutors’ at intake.

This Article fills a gap in the academic literature, which has previously focused on recent reforms to criminal, not juvenile, court sentencing of children. Recent juvenile court reforms prevent prosecutors and judges from using wide discretion to incarcerate children for petty offenses, follow social science research demonstrating how overly punitive actions undermine rehabilitative goals, and provide important checks and balances on what are often the most important decisions in individual cases. These juvenile court reforms also enhance the importance of plea bargaining, and thus risk creating the same harms as have been documented with plea bargaining in the criminal justice system. This Article argues that risk is mitigated by limitations on prosecutors’ leverage and that future reforms should include further checks on that leverage.

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Josh Gupta-Kagan 96 Wash. L. Rev. 425

 Talking Back in Court


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 Talking Back in Court

June 01, 2021 | 96 Wash. L. Rev. 493

Abstract: People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court. In individual cases, talking back could result in fairer outcomes. On a systemic level, talking back could bring much-needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power. While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly. Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice. The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture. Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

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M. Eve Hanan 96 Wash. L. Rev. 493

Inheritance Crimes


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Inheritance Crimes

June 01, 2021 | 96 Wash. L. Rev. 561

Abstract: The civil justice system has long struggled to resolve disputes over end-of-life transfers. The two most common grounds for challenging the validity of a gift, will, or trust—mental incapacity and undue influence—are vague, hinge on the state of mind of a dead person, and allow factfinders to substitute their own norms and preferences for the donor’s intent. In addition, the slayer doctrine—which prohibits killers from inheriting from their victims—has generated decades of constitutional challenges.

But recently, these controversial rules have migrated into an area where the stakes are significantly higher: the criminal justice system. For example, states have criminalized financial exploitation of an elder, which includes obtaining assets through undue influence. Likewise, prosecutors are bringing theft charges against people who accept transfers from mentally diminished owners. Finally, legislatures are experimenting with abuser statutes that extend the slayer doctrine by barring anyone from receiving property from the estate of a senior citizen whom they mistreated.

This Article evaluates the benefits and costs of this trend. It explains that these new sanctions deter elder abuse: wrongdoing that is rampant, pernicious, and underreported. Nevertheless, this Article exposes the dangers of criminalizing this unique area of law. First, criminal undue influence and the abuser doctrine may be unconstitutional in some situations. Second, inheritance crimes suffer from the flaws that make probate litigation so unreliable. Third, because inheritance law and criminal law have been traditionally understood as distinct, jurisdictions have not yet figured out how to gracefully merge them. Finally, this Article builds on these insights to argue that states should abolish criminal undue influence, harmonize civil and criminal rules, and create exceptions to abuser laws.

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David Horton & Reid Kress Weisbord 96 Wash. L. Rev. 561

 Benevolent Exclusion

 


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 Benevolent Exclusion

 

June 01, 2021 | 96 Wash. L. Rev. 613

Abstract: The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity of ideas, experiences, and frames of interpretation that characterize the American population. By failing to make sure that people who are poor can serve, we impoverish our shared understanding of doing justice.

This Article offers a historical and empirical account of how socio-economic exclusion cuts prospective jurors from juries. It argues that the dominant rationale for such exclusion is a perception that poor and otherwise burdened prospective jurors should be excused from jury service for their own benefit. The effect of this superficially benevolent rationale, I argue, has been the concealment and reinforcement of class-based jury discrimination. The Article concludes that addressing this seemingly benign but exclusionary practice is an essential task for legal reformers, recognizing the relationship between race and class-based exclusion. Further, it recommends instituting structural changes that would make it possible for any eligible person to serve, regardless of income or wealth.

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Anna Offit 96 Wash. L. Rev. 613

Bully No More: Why Trademark Owners Engage in Trademark Overreach and How to Prevent It


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Bully No More: Why Trademark Owners Engage in Trademark Overreach and How to Prevent It

June 01, 2021 | 96 Wash. L. Rev. 667

Abstract: At its core, trademark law exists as a tool for consumer protection. Thus, trademark owners use policing and enforcement to maintain a trademark’s goodwill, which in turn protects consumers from confusion. But policing and enforcement can lead to trademark overreach and bullying—which undermine the goal of trademark law. This Comment explains that trademark owners are incentivized to engage in aggressive enforcement tactics because courts weigh enforcement efforts in favor of trademark strength. And strong trademarks receive strong protection because such marks are more likely to succeed in trademark infringement litigation. To curb trademark bullying and realign trademark law with its consumer protection purpose, this Comment argues that courts assessing trademark strength should focus on evidence of marketing strategies and consumer perception rather than trademark enforcement.

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Quynh La 96 Wash. L. Rev. 667

How Far Will Fara Go? The Foreign Agents Registration Act and the Criminalization of Global Human Rights Advocacy


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How Far Will Fara Go? The Foreign Agents Registration Act and the Criminalization of Global Human Rights Advocacy

June 01, 2021 | 96 Wash. L. Rev. 695

Abstract: The Foreign Agents Registration Act (FARA) was enacted and enforced during World War II to protect the American public from foreign propaganda, especially from the Nazi party. Following the war, FARA was scarcely used for over half a century. But in the past five years, there has been a significant uptick in FARA enforcement, particularly against major political personalities. The revival of FARA has led many legislators and scholars to advocate for expansions of FARA’s scope and enforcement mechanisms in the name of national security. But most have failed to acknowledge the risk and likelihood of politicized enforcement. The United States government is positioned to use FARA to harass organizations critical of the United States—in particular, human rights organizations (HROs) that take politically unpopular positions. The forced association of FARA’s registration requirements could jeopardize HROs’ ability to engage in advocacy by fostering public distrust and social stigma. Accordingly, politicized FARA enforcement against such organizations violates the First Amendment. This Comment advises human rights organizations that have been subject to a politicized FARA enforcement action on how to best attack it and urges Congress to amend FARA to protect these groups and their interests.

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Monica Romero 96 Wash. L. Rev. 695

 Water Banks in Washington State: A Tool for Climate Resilience


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 Water Banks in Washington State: A Tool for Climate Resilience

June 01, 2021 | 96 Wash. L. Rev. 729

Abstract: Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and productive uses while maintaining water in streams. Moving forward, Washington should embrace water banks for each unique basin’s needs.

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Jennifer J. Seely 96 Wash. L. Rev. 729

 Reimagining Exceptional Events: Regulating Wildfires Through the Clean Air Act


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 Reimagining Exceptional Events: Regulating Wildfires Through the Clean Air Act

June 01, 2021 | 96 Wash. L. Rev. 765

Abstract: Wildfires are increasing in both frequency and severity due to climate change. Smoke from these fires causes serious health problems. Land managers agree that prescribed burns help mitigate these negative consequences. Prescribed burns are lower-intensity fires that are intentionally ignited and managed for an ecological benefit. They reduce the amount of smoke produced and limit wildfire damage to natural systems and human property.

The Clean Air Act (CAA) is designed to regulate air pollution to protect public health, yet it exempts wildfire smoke through the exceptional events designation while imposing strict regulations on prescribed burns. Congress and the Environmental Protection Agency must change the exceptional event designation to hold states accountable for smoke caused by improper land management. These changes will prioritize exempting fire that fulfills ecological roles and realigning the exceptional event designation with the public health goals of the CAA.

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Emily Williams 96 Wash. L. Rev. 765