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Volume 2015, Number 3


Hoop Dreams Deferred: The WNBA, the NBA, and the Long-Standing Gender Inequity at the Game's Highest Level
N. Jeremi Duru

From the beginning, the WNBA—which was born of the NBA’s approval in the NBA’s cities with NBA teams’ colors and largely NBA-related names and which survived a challenge from the ABL by virtue of its NBA affiliation—has featured a more stringent age eligibility rule than the NBA. When taken together, the two rules create two different tracks—one for men and one for women—to be negotiated on route to a professional basketball career in the United States. This sort of dualtracking, in which one route presents advantages over the other, is unacceptable in a nation committed to gender equity, and it therefore requires Title VII scrutiny.

Although parent companies often are not held liable for their subsidiaries’ acts, both the integrated enterprise doctrine and the direct liability participation doctrine suggest the NBA could be held liable for the discrimination that flows from the divergent policies. And, therefore, whether the NBA is determined under Title VII analysis to be a third party employer or an employment agency, an aggrieved woman basketball player who is ruled ineligible under the WNBA’s age eligibility rule but who would be eligible, were she a man, under the NBA’s age eligibility rule, will have a potentially viable claim. As such, the NBA and WNBA would do well to revise their age eligibility policies such that men and women of the same age have the same access to employment in the NBA and WNBA, respectively.

2015 Utah L. Rev. 559 | (Download PDF)

The Missing Victims of Health Care Fraud
Anthony Kyriakakis

Over the past few decades, combating criminal health care fraud has become one of the highest priorities of federal law enforcement, which views and treats it as a financial crime that causes vast economic losses to the government and private insurers. But the crime also causes, or threatens, physical harms to individual health care patients, a class of victims that the criminal justice system often fails to recognize. This Article is the first to explore how structures and hidden levers of power within the criminal justice bureaucracy lead agents and prosecutors to select—and ignore—particular harms and victims and, more importantly, what drives their selections. The implications extend beyond health care fraud.

 Questions about this form of prosecutorial discretion are surprisingly absent in the scholarly literature. Through the lens of health care fraud, I show that features of statutory frameworks and sentencing guidelines can have an outsized influence on the selection of harms and victims in complex cases, often in unintended ways that merit greater scrutiny. Internal dynamics within the criminal justice bureaucracy, including those driven by governmental interests as well as the interests of agents and prosecutors themselves, also play a significant role. These factors combine to spur our criminal justice system to treat health care fraud as just another flavor of fraud, devaluing victims and skewing punishments of offenders who exploit patients as a means to enrich themselves.

2015 Utah L. Rev. 605 | (Download PDF)

Childcare Market Failure
Meredith Johnson Harbach

In the United States, family law norms and childcare policy have long reflected the view that childcare is a private, family matter. But childcare has crossed the private-public divide. In the absence of parents at home providing care, a substantial childcare market has emerged. And that market is failing. Our law, policy, and legal scholarship have yet to recognize and account for this new reality. This Article confronts the problem on its own terms, using economic analysis to diagnose our childcare crisis as a market failure, and makes the case for more active and explicit government intervention in the childcare market. Economic theory not only helps us understand why the market is failing, but also recommends specific law and policy levers—subsidies, regulation, and information—to mitigate market failure, enabling us to craft more responsive reforms. In the end, the market lens shifts our focus from what is private about caring for children to what is public about it. From this vantage point, the Article makes plain that our childcare market is too big—and too important—to fail.

2015 Utah L. Rev. 659| (Download PDF)


Unfinished Business of Repealing "Don't Ask, Don't Tell": The Military's Unconstitutional Ban on Transgender Individuals
Kayla Quam

Discrimination based on gender identity is a form of sex discrimination. In Price Waterhouse, the Supreme Court clarified that “sex” encompasses more than biological genitalia. That ruling eviscerated the holding of Holloway, Sommers, and Ulane—the three cases the Tenth Circuit relied on in declaring that sex discrimination did not encompass gender nonconformity. At least since Price Waterhouse, discrimination against someone because of that individual’s failure to conform to sex stereotypes must be considered a form of sex discrimination. As transgenderism is defined as nonconformity “to that typically associated with the sex . . . assigned at birth,”discrimination based on gender identity is a form of discrimination based on sex. Furthermore, transgender individuals are either excluded from the military under DoDI 6130.03 because of the genitalia assigned at birth (which is discrimination based on sex), or because they are acting against the typical gender mores assigned to the sexes (which is discrimination based on sex stereotypes). Regardless, intermediate scrutiny applies.

2015 Utah L. Rev. 721| (Download PDF)


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