Digital Commons Network^™

Salvaging Article Iii, Annie Brett, Ryan Scott

UF Law Faculty Publications

Admiralty was once the foundation of our legal and economic survival. In recent years, however, it has come to be viewed as an anachronistic backwater of the law. Unfortunately, this perception belies the reality: admiralty law is as vitally important as ever, not just to the commerce that it supports but in the realities it illuminates about the federal courts and our constitutional structure.

This Article looks at the case study of historic treasure shipwrecks to show how our legal system has strayed increasingly far from the core principles of admiralty that the founders enshrined in Article III of the …

The Gym-Pire Strikes Back: Is The Eighth Circuit's Vacatur Of The Ftc's Click-To-Cancel Rule The End Of The Regulatory Workout For The Health And Fitness Industry?, Nicholas J. Christopolis

UF Law Faculty Publications

There is a broader regulatory battle in which subscription-based businesses, particularly in the health and fitness industry, are being reined in by increasingly aggressive consumer protection regimes. This Article examines this conundrum facing regulators and affected businesses in four parts. Part I explores the concept of negative option marketing, the FTC’s theory of harm and justification for promulgating the Rule in the modern subscription economy, and the compliance burdens it would have imposed on the health and fitness industry. Part II explains the pushback from the health and fitness industry that delayed enforcement, created loopholes, and helped fuel the lawsuits …

Drafting In The Digital Age: Contract-Design And Web-Based Consumer Contracts, Ben Fernandez

UF Law Faculty Publications

Consumers often do not read the contracts they sign. They know the basic terms of the deal and take the risk that it is enough to avoid being sued for breach. Even sophisticated businesspeople often do not read the documents they sign; they rely on their attorneys to tell them what they need to know. If the sole purpose of documenting a contract is to protect the party that has the financial resources and the leverage to hire an attorney to draft it, then the attorney doesn’t do their client a disservice by focusing solely on the contract’s enforceability. A …

Restoring Public Trust In Elections: An Empirical Study Of How Campaign Finance Reform Can Restore Public Trust In Elections, Matthew Dale Kim

UF Law Faculty Publications

The American public has become deeply distrustful of elections. This distrust is partly due to Supreme Court decisions curtailing campaign finance restrictions, on First Amendment grounds, to spending that creates an appearance of quid pro quo corruption. The Court’s reasoning assumes that, although the government has an interest in protecting the public’s trust in elections, campaign spending does not pose a threat to the public’s trust absent the appearance of quid pro quo corruption. However, it is unclear if campaign spending undermines the public’s trust in elections through means other than the appearance of quid pro quo corruption. If it …

Medication Abortion And The Mails: The Ghost Of Anthony Comstock Rides Again?, Lars Noah

UF Law Faculty Publications

Mail-order dispensing of the prescription drug mifepristone has become the latest flashpoint in this country’s long-running debate over abortion access. It also has brought back from the dead one of the oldest federal statutes to address that contentious subject. In their fight to limit access to a drug approved by the FDA one quarter of a century ago, abortion opponents have rediscovered the Comstock Act. Although amended on several occasions since 1873, Congress never managed to repeal or clarify its ambiguous language relating to abortion. On its narrowest reading, this provision would have no impact whatsoever on access to mifepristone; …

Flaws In The Preemption Defense To Liability Claims Against Generic Drug Manufacturers, Lars Noah

UF Law Faculty Publications

More than a dozen years have passed since the U.S. Supreme Court decided that federal preemption protects manufacturers of generic (but not brand-name) drugs from most types of products liability claims. This seemingly arbitrary distinction sprang from a peculiarity in the regulations of the U.S. Food and Drug Administration (FDA). That agency soon thereafter proposed to modify its rules in order to eliminate this asymmetry in how the implied preemption defense worked to bar inadequate warning claims, but its effort ultimately failed, while lower courts have confronted some creative efforts to circumvent the special protection enjoyed by generic drug manufacturers. …

Dead Infants And Taking The Fifth, Tracey Maclin

UF Law Faculty Publications

This Essay offers tribute to Professor Colb's teachings and insights expressed in her writings on the Court's Miranda and Self-Incrimination Clause rulings. Since the start of the twenty-first century, Professor Colb wrote many blogs on the Court's Miranda doctrine. Miranda v. Arizona famously held that persons under arrest must be warned of their right to silence and to have counsel's advice before being subject to interrogation. Generally speaking, Professor Colb was critical of the Court's results and reasoning—for good reason.

As someone who supports a broad interpretation of the Fifth Amendment, I offer a counterview of Professor Colb's conception of …

Do Ais Dream Of Electric Boards?, Robert J. Rhee

UF Law Faculty Publications

When artificial intelligence (“AI”) acquires self-awareness, agency, and unique intelligence, it will attain ontological personhood. Management of firms by AI would be technologically and economically feasible. The law could confer AI with the status of legal personhood, as it did with the personhood of traditional business firms in the past, thus dispensing with the need for inserting AI as property within the legal boundary of a firm. As a separate and distinct entity, AI could function independently as a manager in the way that legal or natural persons do today: i.e., AI as director, officer, partner, member, or manager. Such …

The Constitutionality Of Assisted Outpatient Treatment, E. Lea Johnston

UF Law Faculty Publications

States are increasingly turning to assisted outpatient treatment (more accurately called preventive outpatient civil commitment, or POC) to ameliorate the mental health and homelessness crises. These laws authorize court-ordered community treatment for individuals with mental illnesses and histories of treatment noncompliance. The treatment aims to prevent psychiatric deterioration before it leads individuals to endanger themselves or others. Affected individuals pose no immediate danger, typically can make rational treatment decisions, and may reside in the community. These laws dramatically extend states’ means of social control and cannot be easily justified by traditional understandings of state police power or parens patriae commitment …

"May It Please Her Honor": The United States' First Women Judges, 1870-1930, Elizabeth D. Katz

UF Law Faculty Publications

Between 1870 and 1930, hundreds of women served as judges in the United States. While a small number compared to the men who served, these pathbreaking officials were particularly visible and influential in women's efforts to secure political rights and advance in the legal profession. Women's progress in obtaining judgeships developed in a regional pattern, with women in the Midwest and West able to secure earlier and broader jurisdiction positions than their counterparts in the Northeast and South. Seeking access to the judiciary, women in conservative states made gendered arguments about women's supposed superiority in overseeing cases involving women, children, …

The Elected Judge, Matthew Dale Kim

UF Law Faculty Publications

Many legal scholars and jurists oppose electing judges. Their core criticism against judicial elections is that elected judges are incentivized to avoid issuing unpopular, countermajoritarian decisions in constitutional law cases and thus fail to safeguard minority rights against abuses of the majority. Scholars have described this problem as the elected judges’ “majoritarian difficulty.” Numerous empirical studies suggest that elected judges do, in fact, fear electoral backlash and allow majoritarian demands to affect their decision-making.

This Article asks whether such fears are warranted. Elected judges should not allow majoritarian pressures to affect their decision-making unless the American public is aware of …

Employment Law Reform From A Contracts Perspective, Rachel Arnow-Richman

UF Law Faculty Publications

For most of history, pro-worker legal reform has meant legislative action. By contrast, this Essay, prepared for the 75th Annual NYU Conference on Labor & Employment Law, looks to contract law as the source and site of progressive change.

This may seem odd. Contract has primarily been a tool of management. Terms set by the “parties” to an employment relationship, are likely to be those imposed by the employer. Yet contract law is essential to employment law reform. Protective legislation is incremental and discrete. Beyond its provisions, the employment relationship is defined entirely by private ordering. The day-to-day experience of …

Winding Authority: Consent By Registration And The Legal Singularity, Christina Frohock

Articles

More than forty years ago, the Pennsylvania legislature enacted a uniquely broad and explicit statute directed at out-of-state corporations: registration as a foreign corporation constitutes consent to general personal jurisdiction in the Commonwealth. Pennsylvania's consent-by-registration statute has faced Fourteenth Amendment due process challenges in state and federal courts alike, rising all the way to both the Supreme Court of Pennsylvania and the U.S. Supreme Court. This Article first tracks the myriad challenges to the Pennsylvania statute, culminating in the U.S. Supreme Court's opinion in Mallory v. Norfolk Southern Railway Co. in 2023. The Article then argues that the statute's zigzagging …

Salerno And The Second Amendment, Jacob D. Charles

SMU Law Review

The Supreme Court’s Second Amendment is beginning to take more concrete shape. In United States v. Rahimi, the Court rejected a challenge to the federal prohibition on gun possession by those subject to certain kinds of restraining orders. In that case, the Court’s analysis hinged in part on the difficulty of successfully waging facial constitutional challenges. It confirmed that the teaching of United States v. Salerno—that a statute is only facially unconstitutional if it has no valid applications—applies fully to the Second Amendment. Although it relied on this procedural lesson from Salerno, the justices overlooked Salerno’s …

The Law Of First Impression, Amy J. Griffin

SMU Law Review

Judicial decision-making is governed by a complex web of unwritten operational rules—rules made by judges themselves. Some of these rules, like stare decisis or canons of interpretation, garner endless attention. Others remain unnoticed, becoming entrenched without ever being evaluated.

This Article is the first to identify and evaluate one such category of rules—those governing issues of first impression Public and academic attention is focused almost entirely on judicial fidelity to precedent, not what courts do in its absence. But issues of first impression are decided regularly by all U.S. courts, and the first impression label can have concrete legal effects. …

Chapter 11 Mediation, Laura N. Coordes

Emory Bankruptcy Developments Journal

Mediation has become an increasingly popular and powerful tool in chapter 11 reorganizations, especially in large cases. Despite its widespread and growing use, mediation in chapter 11 is under-studied. This Article begins to fill this gap in the literature by critically assessing mediation, a form of largely private dealmaking, in the context of a bankruptcy process that is supposed to be largely public. The Article begins by discussing mediation’s popularity within the bankruptcy process before turning to a review of issues that have arisen in recent cases, providing a critical assessment of mediation’s promise and perils. In particular, the Article …

The Walking Debt: How Zombie Pacs Threaten Federal Elections And Proposals For Reform, Ariel Bagley

Emory Bankruptcy Developments Journal

Zombie political action committees are political entities that are legally alive but whose candidate the committee is attached to has either died or functionally retired from politics. These committees form as a byproduct of skewed incentives in campaign finance law. The Federal Election Commission (“FEC”) is tasked with enforcing campaign finance laws and terminating political committees. However, it is structurally ineffective at enforcing those laws. Congress, meanwhile, has defunded the FEC and is poorly incentivized to improve its efficacy, as any Congressperson may one day benefit from having a zombie committee. When zombies do form, they are almost impossible to …

Environmental Law—Relatively Impermanent Waters: The Need For State Regulation Of Isolated Wetlands In Arkansas After Sackett V. Environmental Protection Agency, Caroline E. O'Connor

University of Arkansas at Little Rock Law Review

No abstract provided.

Intellectual Property—Copyright Law—Ai Is “Actual Imitation:” An Argument On Why Generative Ai Should Not Be Allowed To Learn From Copyrighted Materials Without Authorization, Tj Stotts

University of Arkansas at Little Rock Law Review

No abstract provided.

Axiomatic Shifting Paradigms: Wittgenstein’S Language-Games, Gödel’S Incompleteness Theorem, Language, Law, And The Limits Of Formalism, Charles Edward Andrew Lincoln Iv

University of Arkansas at Little Rock Law Review

This Article shows how Ludwig Wittgenstein’s idea of “language-games” and Kurt Gödel’s Incompleteness Theorems mark the outer limits of legal formalism and other leading interpretive theories—textualism, originalism, and purposivism. It begins by tracing Wittgenstein’s progression from a “picture theory” of language to the view that social context drives meaning more than any simple correspondence between words and reality. Gödel’s work on formal systems, suggesting that mathematics—long held as the pinnacle of logical certainty—itself cannot be both consistent and complete, reinforces the notion that purely “logical” approaches cannot capture the full range of linguistic and social nuances at play in law. …

Criminal Law— Addressing Probation Revocation Policies In Arkansas, Hunter Willis

University of Arkansas at Little Rock Law Review

No abstract provided.

A Critical Perspective On Formative Assessment Mandates, Joshua M. Silverstein

University of Arkansas at Little Rock Law Review

Formative assessment is a hot topic in legal education. Numerous commentators maintain that such assessment improves student learning of legal skills and content. Many law schools have adopted formative assessment requirements. And the American Bar Association recently proposed changing law school accreditation standards to mandate formative assessment in the first year. This essay challenges these trends. There is a paucity of evidence that formative assessment enhances learning among law students. Much of the broader assessment literature has limited relevance in legal education. And conducting formative assessment entails serious costs that are frequently overlooked by its proponents. In sum, the evidence …

Property Law— Squaring The Mold Predicament With Arkansas Landlord-Tenant Law, Katherine James Clark

University of Arkansas at Little Rock Law Review

No abstract provided.

Executive Order 14330: A Solution In Search Of A Problem, Edward A. Zelinsky

Cardozo Law Review de•novo

President Trump’s Executive Order 14330 proclaims its determination to “democratiz[e] access to alternative investments for 401(k) investors.” Among its other provisions, Executive Order 14330 requires the Department of Labor (DOL) to “clarify the duties that a fiduciary owes to plan participants.” Such clarification shall “relieve the regulatory burdens and litigation risk that” allegedly deny 401(k) participants access to alternative investments. However, the order states, DOL’s administrative guidance on alternative investments must be “consistent with applicable law.”

The Service’S Overgenerous Tax Treatment Of Crowdfunding, Jeffrey H. Kahn

Cardozo Law Review de•novo

The Internal Revenue Service released a fact sheet that defines crowdfunding as a method to raise money on websites by soliciting contributions from a large number of people. This article considers how crowdfunding is treated for tax purposes and argues that, contrary to the fact sheet's determination, all donations collected by commercial websites should be income to the recipient.

Cognitive Decline And The U.S. Presidency: The Case Of Joe Biden, Mark Fisher, Sandy Sanbar

Health Matrix: The Journal of Law-Medicine

This article examines the intersection of cognitive health, medical ethics, and constitutional governance through the lens of President Joe Biden’s medical history and recent cognitive performance. Highlighting the absence of formal neurocognitive testing protocols for presidential candidates and sitting Presidents, it raises critical questions about transparency, accountability, and the statutory and ethical obligations of medical professionals serving in political contexts. The paper discusses Biden’s stroke history, neurosurgical interventions, and subsequent lack of documented cognitive assessments, emphasizing the implications for public trust and the constitutional duty to ensure an executive fit for office. It advocates for the implementation of standardized, objective …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 37, Issue 2, Spring 2025.

The Unethical Practices Of Force-Placed Insurance: How To Protect And Indemnify The Forgotten Investors Of Mortgage-Backed Securities, Devin Moore

St. Thomas Law Review

In the United States, the media has been attempting to inform homeowners of an abusive insurance policy: force-placed insurance. Force-placed insurance is a type of policy that only protects the interest of the mortgage lender or mortgage servicer, and not the homeowner. While federal and state governments have restricted force-placed insurance policies for homeowners, the laws do not protect investors of mortgage-backed securities with force-placed insurance policies. These investors have an extensive impact on the general population since their investments are funded by retirement savings plans. As a result, the investors could lose the retirement savings of millions without proper …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …

Section 4 -- Jury, Trial: A Misnomer In The Faa, Tracey B. Frisch

American University Business Law Review

The purpose of the Federal Arbitration Act (FAA), according to the Supreme Court, was not merely to reverse judicial hostility towards arbitration by placing agreements to arbitrate on the same footing as other contracts but to actively promote the use of arbitration on a national scale. It is not surprising then that most provisions of the FAA envision limited court intervention into the arbitration process.