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Full-Text Articles in Law
State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield
State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield
UF Law Faculty Publications
By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
UF Law Faculty Publications
This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
UF Law Faculty Publications
This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush
UF Law Faculty Publications
This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives …
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston
UF Law Faculty Publications
In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …