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Full-Text Articles in Law
Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao
Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao
Faculty Scholarship
The “political question” doctrine is hotly contested in 2018, and perhaps on the verge of its biggest reversal since the Baker v. Carr revolution. Later this year, we will learn if the Supreme Court in Whitford v. Gill will regard extreme partisan gerrymandering as a violation of the First and Fourteenth Amendments, rather than as a nonjusticiable political question.1 It turns out that another high-profile case in the lower courts illuminates the use and misuse of the political question doctrine. The Emoluments cases, and in particular, the Southern District of New York’s dismissal of CREW v. Trump, 2 …
Risk And Anxiety: A Theory Of Data Breach Harms, Danielle K. Citron, Daniel Solove
Risk And Anxiety: A Theory Of Data Breach Harms, Danielle K. Citron, Daniel Solove
Faculty Scholarship
In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …
State Standing In United States V. Texas: Opening The Floodgates To States Challenging The Federal Government Or Proper Federalism?, Bradford Mank
State Standing In United States V. Texas: Opening The Floodgates To States Challenging The Federal Government Or Proper Federalism?, Bradford Mank
Faculty Articles and Other Publications
In United States v. Texas, the Supreme Court by an equally divided vote, 4 to 4, affirmed the decision of the U.S. Fifth Circuit Court of Appeals that the State of Texas had Article III standing to challenge in federal court the Department of Homeland Security’s (DHS) directive establishing a Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program to grant lawful immigration status to millions of undocumented immigrants. A serious question is whether state standing in this case will open the floodgates to allow states to challenge virtually every federal executive action. On the other hand, …
Congress, The Courts, And Party Polarization: Why Congress Rarely Checks The President And Why The Courts Should Not Take Congress’S Place, Neal Devins
Faculty Publications
No abstract provided.
Statutory Damages And Standing After Spokeo V. Robins, Richard L. Heppner Jr.
Statutory Damages And Standing After Spokeo V. Robins, Richard L. Heppner Jr.
Law Faculty Publications
In Spokeo v. Robins, the U.S. Supreme Court held that courts may no longer infer the existence of an injury in fact—and thus constitutional standing—from a statute’s use of a particular remedy, such as a statutory or liquidated damages provision. But Spokeo also directed courts to consider whether Congress intended to identify an intangible harm and elevate it to the status of a “concrete” injury in fact when deciding standing questions. This article argues that courts can and should continue to pay close attention to the structure and language of statutory remedial provisions in making that assessment. The article proposes …
Byrd V United States: Unauthorized Drivers Of Rental Cars Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin
Byrd V United States: Unauthorized Drivers Of Rental Cars Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin
UF Law Faculty Publications
No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment. In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment …
Promoting Executive Accountability Through Qui Tam Legislation, Randy Beck
Promoting Executive Accountability Through Qui Tam Legislation, Randy Beck
Scholarly Works
For hundreds of years prior to ratification of the U.S. Constitution, Anglo-American legislatures used qui tam legislation to enforce legal constraints on government officials. A qui tam statute allows a private informer to collect a statutory fine for illegal conduct, even if the informer lacks the particularized injury normally required for Article III standing. This essay explores whether qui tam regulation should be revived as a means of ensuring executive branch legal accountability."
Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck
Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck
Scholarly Works
The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …