Law Commons^™

The Will As An Implied Unilateral Arbitration Contract, E. Gary Spitko

Florida Law Review

A consensus has begun to develop in the case law, the academic commentary, and the statutory reform movement that a testator’s provision in her will mandating arbitration of any challenge to the will should not be enforceable against a beneficiary who has not agreed to the arbitration provision, at least where the will contestant, by his contest, seeks to increase his inheritance outside the will. Grounding this consensus is the widespread understanding that a will is not a contract. This Article seeks to challenge both the understanding that a will is not a contract and the opposition to enforcement of …

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 …

Don't Ground Me Bro!: Private Ownership Of Airspace And How It Invalidates The Faa's Blanket Prohibition On Low Altitude Commercial Drone Operations, Pierce Giboney

Florida Law Review

In years past, society has typically associated the word “drone” with the War on Terror and far-off battlefields. With the advent of the smart phone revolution, however, the once prohibitive costs of the technology have decreased to a level the general public can afford. As a consequence, a rising number of entrepreneurs associate the word “drone” with opportunity—a means of reaching a new commercial frontier, provided they can get off the ground.

Purportedly due to the lack of a regulatory framework governing the new technology, the Federal Aviation Administration (FAA) has essentially prohibited the use of drones at any altitude …

A World Wide Web Of Unwanted Children: The Practice, The Problem, And The Solution To Private Re-Homing, S. Megan Testerman

Florida Law Review

A deplorable practice has emerged in the world of adoption. Adoptive families are now using the Internet to give their unwanted adopted children over to complete strangers, some of whom are traffickers, pedophiles, child pornographers, or worse. This practice is known as private rehoming. Through the use of online message boards and a simple notarized power of attorney document, adoptive parents are circumventing the adoption system—including its home study and background check requirements for prospective parents—and placing children in great danger. Because only a handful of states have enacted legislation directly targeting private re-homing and because no such legislation exists …

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

Florida Law Review

This Essay establishes that content-based restrictions on speech are no longer uniformly subjected to unequivocally more demanding judicial scrutiny than content-neutral restrictions by examining several recent jurisprudential trends and their effects. The five relevant trends are (1) the compounding complications and failed attempts in seeking to distinguish between content-neutral and content-based regulations of speech in the first place; (2) the crucial judicial option, distinctively available in content-neutral regulation cases, to insist on the realistic availability of ample valued alternative channels through which speakers can continue to convey their message; (3) in partial offset thereof, the rise of the judicial option, …

Retaliation And The Reasonable Person, Sandra Sperino

Florida Law Review

When a worker complains about discrimination, federal law is supposed to protect that worker from later retaliation. Recent scholarly attention focuses on how courts limit retaliation claims by narrowly framing the causation inquiry. A larger threat to retaliation law is developing in the lower courts. Courts are declaring a wide swath of conduct as insufficiently serious to constitute retaliation.

Many courts hold that it is legal for an employer to threaten to fire a worker, to place the worker on administrative leave, or to negatively evaluate the worker because she complained about discriminatory conduct. Even if the worker has evidence …

Economic Theory, Divided Infringement, And Enforcing Interactive Patents, W. Keith Robinson

Florida Law Review

High tech companies—especially in the emerging areas of the Internet of Things, wearable devices, and personalized medicine—have found it difficult to enforce their patents on interactive technologies. Enforcement is especially difficult when multiple parties combine to perform all of the steps of a claimed method, which is referred to as joint or divided infringement. Because of this difficulty, some commentators advocate that “interactive” patents susceptible to divided infringement should not be enforced at all.

In contrast, this Article argues that economic theory supports the enforcement of interactive patents. Previous papers have analyzeddivided infringement problems from a doctrinal and policy perspective.This …

Regulating Digital Trade, Sapna Kumar

Florida Law Review

Under § 337 of the Tariff Act, the International Trade Commission (ITC) has jurisdiction over articles that enter the country and infringe intellectual property rights. Recently, the ITC vastly expanded its powers, asserting jurisdiction over imported digital files that infringe intellectual property rights. This Article examines the limits of the ITC’s authority, arguing that it lacks jurisdiction over digital information, because information in the abstract cannot be controlled by a court or an agency. It maintains that the ITC has misconstrued the breadth of its statutory authority under the Tariff Act and that the traditional tools of statutory interpretation show …

Posnerian Hearsay: Slaying The Discretion Dragon, Liesa L. Richter

Florida Law Review

Distinguished jurist and scholar, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit penned a concurrence in United States v. Boyce, 742 F.3d 792 (7th Cir. 2014), in which he launched a scathing attack on the scheme of categorical hearsay exceptions embodied in the Federal Rules of Evidence. After characterizing the existing hearsay regime as bad “folk psychology,” Judge Posner called for the repeal of categorical hearsay exceptions in favor of case-by-case determinations about the “reliability” of particular hearsay statements by trial judges. Prior to adoption of the Federal Rules, evidence experts debated whether a …

Chafee On Law And Freedom Of Speech, Roy Lechtreck

The Catholic Lawyer

No abstract provided.

The First Amendment And Canon Law, Brendan F. Brown

The Catholic Lawyer

No abstract provided.

The Church Versus Obscene Literature, Maurice Amen, C.S.C.

The Catholic Lawyer

No abstract provided.

Racially Balanced Schools: Psychological And Legal Aspects, Robert F. Drinan, S.J.

The Catholic Lawyer

No abstract provided.

De Jure Integration In Education, Bernard E. Gegan

The Catholic Lawyer

No abstract provided.

Narcotics Statute Ruled Inapplicable To Religious Use Of Peyote

The Catholic Lawyer

No abstract provided.

Redeeming Social Importance Held Decisive In Determining Question Of Obscenity

The Catholic Lawyer

No abstract provided.

Loyalty Oath Held Unconstitutionally Vague

The Catholic Lawyer

No abstract provided.

Note: The New York "Good Samaritan Act"

The Catholic Lawyer

No abstract provided.

The Legality Of De Facto Segregation, Charles E. Rice

The Catholic Lawyer

No abstract provided.

Obscenity: Police Enforcement Problems, John J. Sullivan

The Catholic Lawyer

No abstract provided.

Obscenity: Prosecution Problems And Legislative Suggestions, Richard H. Kuh

The Catholic Lawyer

No abstract provided.

Obscenity Control And Minors - The Case For A Separate Standard, Edward T. Fagan

The Catholic Lawyer

No abstract provided.

October 8, 2016: Nihilism Looks Like This, Bruce Ledewitz

Hallowed Secularism

Blog post, “Nihilism Looks Like This“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Comments On The Eu-Canada Joint Interpretive Declaration On The Ceta, Gus Van Harten

Editorials and Commentaries

Comments are offered on the EU-Canada Joint Interpretive Declaration on the CETA (updated to account for versions of 5 October, 11 October, 13 October, and 22 October 2016). For eight reasons, I argue that the Declaration does very little to alleviate key concerns arising from the CETA's proposed special rights and privileges for foreign investors.

Open Data, Charles Roman

ConLawNOW

With two recent initiatives, OhioCheckbook.com and DataOhio, Ohio is on the cutting edge of the open data movement, and with the right decisions and policies, it can become one of the leading states in the nation for access to open data, voluntarily and proactively released by the government. It is the future of public records. Rather than merely responding to requests, governments can post information online and citizens can more easily access the data thanks to advances in technology. Technology has changed the way public records are collected, stored, and made available. People no longer have to make requests for …

Redefining The Role Of The Police: Perspectives And Expectations, Richard Zitzke, Jonathan Mccombs

Learning Showcase 2016: A Celebration of Discovery, Transformation and Success

The American Policing infrastructure and much of the criminal justice system is under fire for what is perceived as racial and biased policing and Draconian enforcement tactics. The book explores the evolution of the history of policing and how the public perception of the police has changed over the decades. The exploration of a changing expectation where the police receive mixed messages from policy makers and the legal community is exacerbated by the human bias throughout the system. Police training and hiring practices have been focused on in order to achieve the greatest impact, but much work must be done …

All Perspectives Matter: A Co-Orientational Analysis Of Problem-Based Law Enforcement And Community Relationships, Jonathan Mccombs, James A. White, Joanna Williamson

Learning Showcase 2016: A Celebration of Discovery, Transformation and Success

The relationships between law enforcement officers and the communities they serve has been the focus of accelerating national scrutiny in light of numerous contentious and widely publicized incidents involving alleged protected police misconduct, or alternatively, citizen and government overreach.

Salt Lake City Corporation Plaintiff/Appellee V. Mark C. Haik Defendant/Appellant, Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Appeal from the Third Judicial District Court, Salt Lake County, Utah Honorable Andrew Stone, Presiding

Salt Lake City Corporation, Plaintiff-Appellee) V. Mark C. Haik, Defendant-Appellant., Utah Supreme Court

Utah Supreme Court Briefs (2000–2020)

Appeal from the Third Judicial District Court, Salt Lake County, Utah Honorable Andrew Stone, Presiding

The Middle Class, Urban Schools And Choice, Michael Lewyn

Scholarly Works

Urban schools tend to be less attractive to middle-class parents than suburban schools; as a result, the public school system generates suburban sprawl.  This talk discusses both egalitarian and market-oriented means of making cities more attractive to parents.