Law Commons^™

The Cost Of Doing Business In Asia: A Comparative Legal Study Of Environmental Regulations In The Emerging Markets Of Thailand, Malaysia, And Indonesia, Brooke R. Padgett

Brooke R. Padgett

Abstract: This article explores whether voluntary standards, customary law, or more binding bilateral investment treaties are best for corporations, the emerging markets of Thailand, Indonesia, and Malaysia, and the environment itself. While corporations, markets, and the environment facially seem to have divergent priorities, environmental disasters are more costly after the fact than they are to prevent so in reality their priorities may not be so different after all. Some of the potential issues the paper will examine and address are big picture macro level such as fairness to future generations, intergenerational rights; the actual cost through questions of polluter pays, …

Shining The Spotlight On Unpaid Law Student Workers, Susan Harthill

Susan Harthill

Shining the Spotlight on UNPAID LAW STUDENT Workers Susan Harthill Abstract Law students who ‘intern’ at for-profit law firms across the United States do a fair day’s work but do not always get a fair day’s pay. Unpaid student interns have long been a well-utilized labor source in the non-profit world, public agencies, and in certain for-profit sectors, such as entertainment and media. Indeed, some unpaid internships are mutually beneficial arrangements for the student and the employer; the student gets hands-on training in an industry that might be difficult to break into, has useful work experience on her resume, and …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole, Sonia A. Mardarewich

Sonia A Mardarewich

CERTAINTY IN A WORLD OF UNCERTAINTY: PROPOSING

STATUTORY GUIDANCE IN SENTENCING JUVENILES TO LIFE WITHOUT PAROLE

Sonia Mardarewich[1]

Florida Coastal School of Law

March 2013

Abstract: Before the Supreme Court’s decision in Miller v. Alabama, the states were divided between mandatory and discretionary life without the possibility of parole sentencing approaches. The Supreme Court decision of Miller eliminated mandatory life without parole for juvenile defendants under the age of eighteen at the time of the crime. The Supreme Court now mandates that every juvenile must be granted an individualized sentencing hearing to ensure youth and attendant mitigating circumstances …

Is Response To Intervention The Answer To The Eligibility Mess?, Rebekah Gleason Hope

Rebekah G Hope

ABSTRACT The 2004 Amendments ushered in new controversial provisions to the 30 year-old Individuals with Disability Education Act (IDEA). In an effort to cure several issues at once, one of these provisions allows districts to replace the much maligned discrepancy model with a process referred to as the Response to Intervention (RtI) model. RtI was intended to more accurately identify students as eligible under the category of learning disabilities under the IDEA, with a conscious focus on avoiding over-identification and mis-identification. Another priority was early intervention by identifying children before they reach third grade. These lofty goals were certainly worthwhile, …

Plotting Privacy As Intimacy, Heidi Reamer Anderson

Heidi R Anderson

In Plotting Privacy as Intimacy, I use a two-dimensional Venn diagram to plot and evaluate a subset of privacy law decisions. In each plotted case, the general question was whether a person’s action should be afforded legal protection as private. How the court answered that question can be explained by examining whether the specific facts of the case fall within or outside two circles of intimacy. One circle represents the intimacy of the space in which the action occurs. This spatial intimacy is based primarily on the proximity of the identified space to a secluded area of the home. Within …

First Amendment, Fourth Estate & Hot News: Misappropriation Is Not A Solution To The Journalism Crisis, Joseph A. Tomain

Joseph A Tomain

Journalism is a public good. The Framers understood the importance of a free press in a self-governing society and embedded a structural right for freedom of the press in the First Amendment. There is a journalism crisis. Symptoms of the crisis include layoffs of journalists, diminishing content in newspapers and shuttering of newspapers. The rise of online technologies has exacerbated the crisis, mainly by siphoning advertising revenue away from traditional news organizations to free classified advertisement websites such as Craigslist, search engines and myriad other non-journalistic online endeavors. The internet, however, is not the main cause of the journalism crisis. …

Is Response To Intervention The Answer To The Eligibility Mess?, Rebekah G. Hope

Rebekah G Hope

The 2004 Amendments ushered in new controversial provisions to the 30 year-old Individuals with Disability Education Act (IDEA). In an effort to cure several issues at once, one of these provisions allows districts to replace the much maligned discrepancy model with a process referred to as the Response to Intervention (RtI) model. RtI was intended to more accurately identify students as eligible under the category of learning disabilities under the IDEA, with a conscious focus on avoiding over-identification and mis-identification. Another priority was early intervention. These lofty goals were certainly worthwhile, but were they realistic? And, has RtI, as it …

Funding Gideon's Promise By Viewing Excessive Caseloads As Conflicts Of Interests, Heidi R. Anderson

Heidi R Anderson

Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two—the one that has slipped by without sufficient notice or criticism—is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload …

Extending Wrongful Death Damages To Kinship-Care Relationships, Sonya Harrell Hoener

Sonya Harrell Hoener

Millions of children are raised not by a biological parent but by grandparents or other relatives. These families face many difficulties not shared by traditional biological parent relationships, but have the same or even greater emotional bonds. Although many states have recognized the prevalence of these relationships, most states still ignore these relationships in the context of wrongful death actions. While all states and the federal government provide for recovery by family members in the event of wrongful death, the recovery is limited to immediate next-of-kin in most jurisdictions. In this article, I argue that legislatures should amend their wrongful …

The Mythical Right To Obscurity, Heidi R. Anderson

Heidi R Anderson

In several states, citizens who videotaped police misconduct and distributed the videos via the Internet recently were arrested for violating state wiretapping statutes. These arrests highlight a clash between two key interests—the public’s desire to hold the officers accountable via exposure and the officers’ desire to keep the information private. The arrests also raise an oft-debated privacy law question: When should something done or said in public nevertheless be legally protected as private?

For decades, the answer has been: “There can be no privacy in that which is already public.” However, given recent technological developments (e.g., cell phone cameras and …

The Path, Posner, And Persuasion: Jurisprudential Stances And Style In Judicial Writing And Their Influence On Legal Education, Amy C. Thorn

Amy C Thorn

No abstract provided.

Law As Faith: The Personal And Unconstitutional Journey From Rule Of Law To Law Of Rulism, Stephen Durden

Stephen Durden

With the goal of eliminating personal choice, Scalia, engaging in the quintessential Rulist approach, makes the personal choice to reinterpret the “Rule of Law as the Law of Rules.” Because he applies this approach to remaking the Supreme Law of the Land into the Supreme Rules of the Land, this essay takes to task the Rulist quixotic quest to eliminate personal predilection within constitutional interpretational methodology. This essay seeks to pull back the curtain to demonstrate that (1) Scalia’s rewrite of the words and meaning of the Rule of Law and (2) the ideal of the Law of Rules hide …

Global Climate Governance To Enhance Biodiversity & Well-Being: Integrating Non-State Networks And Public International Law In Tropical Forests, Andrew Long

Andrew Long

Environmental governance frequently represents a leading edge of global regulation. The climate regime even continues to create new modes of regulation despite a negotiation impasse. These new initiatives, like existing legal approaches to environmental challenges, too often embrace a fragmented view of issue areas that fails to reflect fundamental connections between the objects of regulation. The shortcomings of a state-driven international issue-by-issue approach to global environmental governance have long been obvious in some areas (such as tropical forests), and are becoming ever clearer in others (most notably climate change). Therefore, private networks play an increasingly important role in global environmental …

Workplace Bullying As An Occupational Safety And Health Matter: A Comparative Analysis, Susan Harthill

Susan Harthill

Workers who are bullied at work suffer physically and mentally, and can even be driven to suicide. There ought to be a law against workplace bullying, and in some countries, there is. Despite a growing body of inter-disciplinary work highlighting the prevalence and costs of workplace bullying in the United States, there are currently no U.S. state or federal laws expressly addressing the issue, despite the ground breaking work and legislative efforts of workplace bullying pioneers, David Yamada and Drs. Ruth and Gary Namie. The dismal fact for American workers is that the United States lags behind many other countries …

The Need For A Revitalized Regulatory Scheme To Address Workplace Bullying In The United States: Harnessing The Federal Occupational Safety And Health Act., Susan Harthill

Susan Harthill

This paper explores the potential for harnessing the OSH Act and the OSHA regulatory apparatus to tackle the widespread problem of workplace bullying. Workplace bullying is a phenomenon that has attracted a considerable amount of domestic and international inter-disciplinary attention. It can be described as psychological or emotional abuse occurring regularly, repeatedly, and over a period of time. Common types of overt behavior include constant criticism, shouting and verbal abuse, persistently picking on the victim, and repeatedly assigning unreasonable or impossible targets or deadlines. In an earlier article, I explained how the experience of the United Kingdom in combating workplace …

Workplace Bullying As An Occupational Safety And Health Matter: A Comparative Analysis, Susan Harthill

Susan Harthill

Workers who are bullied at work suffer physically and mentally, and can even be driven to suicide. There ought to be a law against workplace bullying, and in some countries, there is. Despite a growing body of inter-disciplinary work highlighting the prevalence and costs of workplace bullying in the United States, there are currently no U.S. state or federal laws expressly addressing the issue, despite the ground breaking work and legislative efforts of workplace bullying pioneers, David Yamada and Drs. Ruth and Gary Namie. The dismal fact for American workers is that the United States lags behind many other countries …

Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden

Stephen Durden

Justice Scalia proclaims homage to the “dead” Constitution. Justice Brennan honors the “living” Constitution. Others believe in “a partially living and partially dead Constitution.” But, whichever moniker selected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an interpreter of the Constitution inevitably makes personal choices when using any interpretational method - choices not required by, or perhaps even inconsistent with, the chosen interpretational method. This Article uses canons of construction to …

Partial Textualism, Stephen Durden

Stephen Durden

This Article seeks to demonstrate that plain meaning textualists do not apply plain meaning textualism to the entire Constitution. Instead, plain meaning textualists indulge their personal predilections and apply the doctrine of “partial textualism,” which selectively applies plain meaning textualism to only part of, rather than the entire, Constitution. Partial textualism destroys any possible fairness value to plain meaning textualism. Indeed, such an approach is entirely inconsistent with the goals of plain language textualism. Through examining the Takings Clause, this Article demonstrates that a plain meaning textualist will commonly apply plain meaning textualism to a part of the Constitution that …

Idea And Nclb; Is There A Fix To Make Them Compatible?, Rebekah Gleason Hope

Rebekah G Hope

The Individuals with Disabilities Education Act (IDEA) protects the rights of parents of children with disabilities with an emphasis on each individual child’s unique needs. The No Child Left Behind Act (NCLB) focuses on improving academic results for all children. On the surface these two statutes appear to work in opposite directions. One provides services based on the individual needs of each eligible child, while the other seeks to raise expectations and academic achievements of all students. The former is an in-put based scheme, relying on a complex set of procedures that, if performed correctly would result in a free …

A Faustian Bargain: Creating A Successful Agreement In The Wto Negotiations On Trade In Maritime Services, Rod Sullivan

Rod Sullivan

The WTO has struggled for over a decade to lower trade barriers in services, but few areas have proven as difficult as those barriers which exist in field of the carriage of goods by sea. Ships and shipping are emotional issues, filled with concerns about national pride, national self-sufficiency, and the need for national defense. In just the past few months, the European Community has taken a major step toward free trade by eliminating the liner conference system, a system of cargo and ocean traffic regulation which has been in place for over a century and a half. This change …

Allocating Influence, Heidi R. Anderson

Heidi R Anderson

As more lawmaking is achieved at the administrative agency level, the issue of whether and how to apply the rules of legal ethics to lawyers that lobby agency decision makers grows more important; however, at this time, the ethics of influencing is a murky area in need of clarification. Any attempt to clarify the ethics of influencing should start with a core principle underlying modern legal ethics — the avoidance and/or resolution of conflicts of interest. Accordingly, this Article addresses a conflict of interest — the “allocating influence conflict”— that, to date, has escaped proper identification or analysis. In its …

Foster Children And The Idea; The Fox Guarding The Henhouse, Rebekah Gleason Hope

Rebekah G Hope

The Individuals with Disabilities Education Act (IDEA) creates a complex bundle of rights that protects parents of children with disabilities in an effort to provide each child that is eligible with a free appropriate public education (FAPE). Children in the dependency system, commonly referred to as foster children, also require a free appropriate public education when they have disabilities that affect their learning, but they have no one to advocate for them or assist them in securing an appropriate educational program. They need a surrogate to take the place of the parents who are unable to fill that role. The …

Plain Language Textualism: Some Personal Predilections Are More Equal Than Others, Stephen Durden

Stephen Durden

This Article challenges the validity of plain language textualism, an allegedly superior method of constitutional interpretation based solely on the “plain language” of the Constitution. First, this Article demonstrates that, notwithstanding the ebb and flow of support for this interpretive method, both the Supreme Court and its individual Justices often seek to “plainly” define various provisions in the Constitution. What matters most to this Article is not whether any individual “plain language” interpretation of a constitutional provision seems reasonable or even best, but rather whether the use of “plain language” is consistent with the expressed and unexpressed objectives and purposes …

Democracy And Tort Law In America: The Counter-Revolution, Christopher J. Roederer

Christopher J. Roederer

Although the seeds of democracy and democratic tort reform were sown well before America’s founding, neither began to blossom until after the Second World War. Democratic progress from the 1950s to the 1970s led to, and was in part consolidated by, progressive developments in tort law during the same period. Unfortunately, the last quarter century has been a period of democratic decay in America and just as the revolution in tort law was bound up with democratic progress, the counter-revolution in tort law has tracked and reinforced the waning of American democracy since the 1980s. Although a few authors have …

Sign Amortization Laws: Insight Into Precedent, Property, And Public Policy, Stephen Durden

Stephen Durden

This Article will (1) briefly overview Takings Clause jurisprudence; (2) state a paradigmatic fact pattern; (3) review how the Takings Clause has been applied to sign amortization codes by the United States Supreme Court; (4) review paradigmatic cases from Florida courts and federal courts with Florida jurisdiction; (5) discuss the precedential value of these cases; (6) discuss Lingle and whether it requires an overturning of this precedent; and (7) discuss whether failure to overturn these cases serves the purpose of precedential jurisprudence.

In The Wake Of Lee V. Weisman: The Future Of School Graduation Prayer Is Uncertain At Best, Stephen Durden

Stephen Durden

No abstract provided.

Nude Entertainment Zoning, Stephen Durden

Stephen Durden

Local government regulation, as opposed to prohibition, of nude entertainment began in earnest in the 1970's. These regulations generally fell into four categories: (1) zoning; (2) prohibiting nude entertainment in conjunction with the service of alcohol; (3) licensing; and (4) regulating conduct, e.g., hours of operation, distance from customers, prohibition of private booths. The proliferation of these many and varied approaches began soon after the Supreme Court in California v. LaRue held that nude dancing is, or at least might be, protected by the First Amendment. Prior to LaRue, states regularly prohibited nude entertainment via general prohibitions on lewd and …

The Impact Of Florida Statute 800.03 On Local Regulation Of Nude Dancing Facilities., Stephen Durden

Stephen Durden

Local governments throughout the country have enacted adult entertainment codes regulating, among other things, massage parlors, adult movie theaters, adult video stores and adult toy stores. Local governments have not forgotten live performances particularly nude or topless dancing. Regulations throughout the country require facilities to get licenses before they operate; require that the dancers get licenses; regulate the location of these facilities; and regulate their interiors. These regulations are often challenged, with the challenge being based on the First Amendment. The assumption behind all these cases is that the First Amendment protects nude dancing. That assumption is now unassailable but …

Litter Or Literature: Does The First Amendment Protect Littering Of Neighborhoods?, Stephen Durden

Stephen Durden

Pamphlets can be as simple as a single piece of paper or as voluminous as a small newspaper placed in a plastic bag. Each method of distribution engenders its own particular problems. The purpose of this Article is to examine the legal implications of pamphlet distribution, particularly distribution on residential property. Are these pamphlets litter or literature? Or, might they be called “litter-ature”--a combination of both? The first part of this Article sets forth some of the problems associated with the distribution of pamphlets, especially on residential property. The second part examines the First Amendment speech implications of distributing literature …