Law Commons^™

Because, The Internet: The Limits Of Online Campaign Finance Disclosure, Vitaliy Kats

Florida Law Review

During the 2011–2012 election cycle, Shaun McCutcheon contributed $33,088 to sixteen different candidates for federal office. McCutcheon’s donations complied with the base limits the Federal Election Commission (FEC) set for contributions to individual candidates.McCutcheon wanted to contribute more but was barred by the FEC’s aggregate limit on contributions.In June of 2012, McCutcheon and the Republication National Committee (RNC) filed a complaint before a three-judge panel of the U.S. District Court for the District of Columbia. McCutcheon and the RNC claimed that the aggregate limits on contributions to candidates and political committees were unconstitutional under the First Amendment.The three-judge panel granted …

Docs V. Glocks: Speech, Guns, Discrimination, And Privacy – Is Anyone Winning?, Marla Spector Bowman

Florida Law Review

Americans discuss some of the most intimate details of their lives within the small confines of their neighborhood doctor's office. Many Americans, however, may be taken aback if their physician asked them whether they owned a firearm during a routine physical examination. Although most Americans might not consider firearms education to be their physician's primary purpose, a significant number of doctors in Florida, and throughout the medical community, consider promoting firearms safety a part of practicing preventative medicine.

When a group of Florida legislators saw this behavior as a threat to the Second Amendment, gun owner access to healthcare, and …

Single-Family Zoning, Intimate Association, And The Right To Choose Household Companions, Rigel C. Oliveri

Florida Law Review

Many local governments use single-family zoning ordinances to restrict occupancy in residential areas to households whose members are all related to one another by blood, marriage, or adoption. The Supreme Court upheld such ordinances in the 1974 case of Belle Terre v. Boraas, and they have been used to prevent all sorts of groups from living together-from unmarried couples who are raising children to college students. This Article contends that Belle Terre is wholly incompatible with the Court's modern jurisprudence on privacy and the right of intimate association. The case appears to have survived this long because of a reflexive …

Big Data Blacklisting, Margaret Hu

Florida Law Review

“Big data blacklisting” is the process of categorizing individuals as administratively “guilty until proven innocent” by virtue of suspicious digital data and database screening results. Database screening and digital watchlisting systems are increasingly used to determine who can work, vote, fly, etc. In a big data world, through the deployment of these big data tools, both substantive and procedural due process protections may be threatened in new and nearly invisible ways. Substantive due process rights safeguard fundamental liberty interests. Procedural due process rights prevent arbitrary deprivations by the government of constitutionally protected interests. This Article frames the increasing digital mediation …

Because, The Internet: The Limits Of Online Campaign Finance Disclosure, Vitaliy Kats

Florida Law Review

During the 2011–2012 election cycle, Shaun McCutcheon contributed $33,088 to sixteen different candidates for federal office. McCutcheon’s donations complied with the base limits the Federal Election Commission (FEC) set for contributions to individual candidates.McCutcheon wanted to contribute more but was barred by the FEC’s aggregate limit on contributions.In June of 2012, McCutcheon and the Republication National Committee (RNC) filed a complaint before a three-judge panel of the U.S. District Court for the District of Columbia. McCutcheon and the RNC claimed that the aggregate limits on contributions to candidates and political committees were unconstitutional under the First Amendment.The three-judge panel granted …

Docs V. Glocks: Speech, Guns, Discrimination, And Privacy – Is Anyone Winning?, Marla Spector Bowman

Florida Law Review

Americans discuss some of the most intimate details of their lives within the small confines of their neighborhood doctor's office. Many Americans, however, may be taken aback if their physician asked them whether they owned a firearm during a routine physical examination. Although most Americans might not consider firearms education to be their physician's primary purpose, a significant number of doctors in Florida, and throughout the medical community, consider promoting firearms safety a part of practicing preventative medicine.

When a group of Florida legislators saw this behavior as a threat to the Second Amendment, gun owner access to healthcare, and …

Takings And Extortion, Daniel P. Selmi

Florida Law Review

The Supreme Court has repeatedly employed an extortion narrative in deciding when governmental actions imposing exactions on development projects constitute takings under the Fifth Amendment. In that narrative, local officials act in ever-present bad faith by misusing their regulatory powers to coerce concessions by developers seeking land use approvals. While the extortion narrative has received little attention, it operates as an explanatory device for understanding the Court’s takings jurisprudence in the exactions field. The narrative has justified the expansion of exactions takings law beyond real property, substantially altered the deference normally accorded by the Court to local government actions, and …

The Second Amendment Right To Be Negligent, Andrew Jay Mcclurg

Florida Law Review

Only two constitutional rights—the First and Second Amendments—have a realistic capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for example, the Supreme Court, in New York Times v. Sullivan and its progeny, expressly embraced a right to be negligent in defaming public officials and public figures to protect speech. This Article asserts that through both common and statutory law, the United States has enshrined a de facto Second Amendment right …

Content-Neutral And Content-Based Regulations Of Speech: A Distinction That Is No Longer Worth The Fuss, R. George Wright

Florida Law Review

The binary distinction between content-neutral and content-based speech regulations is of central importance in First Amendment doctrine. This distinction has been the subject of U.S. Supreme Court attention on several occasions. As the case law has evolved, however, this apparently crucial distinction has become less clear, coherent, and practical, such that further attempts to establish any clear hierarchical distinction are no longer worth the effort.

This surprising state of affairs has arisen from several judicial developments, operating jointly as well as separately. These developments,discussed below,have eroded a basic assumption underlying much of free speech jurisprudence: that content-based restrictions are uniformly …

Marriage Equality, Workplace Inequality: The Next Gay Rights Battle, Keith Cunningham-Paremeter

Florida Law Review

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court’s decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife’s picture at work.

This Article critically evaluates the relationship between same-sex marriage …

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Florida Law Review

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modern usage in the federal courts. This history demonstrates that the federal cause of action is …

Consent Searches And Fourth Amendment Reasonableness, Alafair S. Burke

Florida Law Review

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of …

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Florida Law Review

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modern usage in the federal courts. This history demonstrates that the federal cause of action is …

Consent Searches And Fourth Amendment Reasonableness, Alafair S. Burke

Florida Law Review

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of …

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Florida Law Review

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modern usage in the federal courts. This history demonstrates that the federal cause of action is …

Consent Searches And Fourth Amendment Reasonableness, Alafair S. Burke

Florida Law Review

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of …

The Right To Silence V. The Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

This paper concerns a well-known, but badly misunderstood, constitutional right. The Fifth Amendment to the Constitution guarantees, inter alia, that no person “shall be compelled in any criminal case to be a witness against himself.” For the non-lawyer, the Fifth Amendment protects an individual’s right to silence. Many Americans believe that the Constitution protects their right to remain silent when questioned by police officers or governmental officials. Three rulings from the Supreme Court over the past twelve years, Chavez v. Martinez (2003), Berghuis v. Thomkpins (2010) and Salinas v. Texas (2013), however, demonstrate that the “right to remain silent” that …

Rethinking Law Enforcement Officers In Schools, Jason P. Nance

UF Law Faculty Publications

A recent event that occurred in a South Carolina classroom illustrates why there should be concern about assigning law enforcement officers to work in public schools. In October of 2015, a teacher called a law enforcement officer into a classroom to handle a student behavior problem. A female student was using a cell phone in violation of school rules. Other students in the classroom captured what happened next by video. The videos show that when the student refused to exit the classroom, the officer grabbed her by the neck, flipped her and her desk to the floor, and then forcibly …

Students, Police, And The School-To-Prison Pipeline, Jason P. Nance

UF Law Faculty Publications

Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws and policies to keep students safe, including putting more police officers in schools. Yet these decisionmakers have not given enough attention to the potential negative consequences that such laws and policies may have, such as creating a pathway from school to prison for many students. Traditionally, only educators, not law enforcement, handled certain lower-level offenses that students committed, such as fighting or making threats without using a weapon. Drawing on recent restricted data from the US Department of …