Law Commons^™

The Substitute And Complement Theories Of Judicial Review, David Landau

Scholarly Publications

Constitutional theory has hypothesized two distinct and contradictory ways in which judicial review may interact with external political and social support. One line of scholarship has argued that judicial review and external support are substitutes. Thus, "political safeguard" theorists of American federalism and the separation of powers argue that these constitutional values are enforced through the political branches, making judicial review unnecessary. However, a separate line of work, mostly composed of social scientists examining rights issues, argues that the relationship between courts and outside support is complementary-judges are unlikely to succeed in their projects unless they have sufficient assistance from …

False Massiah: The Sixth Amendment Revolution That Wasn't, Wayne A. Logan

Scholarly Publications

No abstract provided.

Smith V. Obama: A Neoclassical After Action Review, Sam Walenz

Florida State University Law Review

No abstract provided.

Vulnerable Insiders: Constitutional Design, International Law And The Victims Of Armed Conflict In Colombia, David Landau

Scholarly Publications

This article, prepared for a conference on “The External Dimensions of Constitutions” held at the University of Cambridge in September 2016, explains how the Colombian Constitutional Court constructed a set of rights for a group of vulnerable insiders—victims of the country’s long-running internal armed conflict. The Court based its jurisprudence on a 1991 constitutional design that turned towards international law as a way of resolving a severe domestic crisis of violence and legitimacy. The Court has drawn heavily on principles of international human rights law and international humanitarian law to develop a set of protections for Colombia’s massive population of …

Big Brother Or Big Pharma: The Lion Fight Over The Surveillance And Promotion Of Pharmaceutical Use In America, Patrick Bailey

Florida State University Law Review

No abstract provided.

Intermediate Scrutiny For Corporate Political Contributions, Joseph K. Leahy

Florida State University Law Review

A corporation contributes to a Super PAC that supports a candidate for public office. A shareholder sues, alleging that management breached its duty of loyalty by making the contribution to promote its own political views rather than to serve the corporation’s best interests—i.e., by acting in bad faith. What standard will a Delaware court apply when reviewing management’s decision to cause the corporation to make the contribution?

Myriad scholars have opined that the court will apply the standard of review for ordinary business decisions: the management-friendly business judgment rule. Unfortunately for our shareholder plaintiff, this rule presumes that management acts …

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

Datamining The Meaning(S) Of Progress, Jake Linford

Scholarly Publications

No abstract provided.

Mass Monitoring, Avlana Eisenberg

Scholarly Publications

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new …

Cybersecurity For Infrastructure: A Critical Analysis, Eldar Haber, Tal Zarsky

Florida State University Law Review

Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in …

Proponents' Standing To Defend Their Ballot Initiatives: Post-Hollingsworth Work-Arounds?, Nat Stern, John S. Caragozian

Scholarly Publications

No abstract provided.

Democratic Erosion And Constitution-Making Moments: The Role Of International Law, David Landau

Scholarly Publications

No abstract provided.

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.

Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson

Florida State University Law Review

The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.

These discussions overlook and this Note confronts …