Law Commons^™

Private Habeas, Chris Kozak

Intercultural Human Rights Law Review

Half a century ago, Abraham Maslow demonstrated that conditioning a person's physical safety on their participation in some higher-order social project is sheer madness. Yet this is exactly what federal immigration law does to undocumented victims of human trafficking. To receive a visa, victims must first convince Donald Trump's immigration officials-who have a strong interest in deporting them-that they are, in fact, victims. They also must cooperate fully in the prosecution of their trafficker, a process over which they have no real control. This is not a new complaint. Advocates have been frustrated by this myopia for a long time. …

Delineating Defects: A Primer On Florida Product Liability Law (2017), Armando G. Hernandez

St. Thomas Law Review

This Article also aims to achieve the long-term goal of serving as an easy-to-use, comprehensive, and pragmatic compendium on Florida product liability law going forward for lawyers, judges, law students, engineers, industry insiders, etc. Part II of this Article explores the state of Florida product liability law decided in 2017 on both the state and federal court levels in the seminal areas of design defect, manufacturing defect, and/or failure to warn.1 4 Part III of this Article outlines trends and developments in the ancillary areas of procedural law, evidence, and jury instructions, among others." Part IV of this Article outlines …

Driven To Distracted Driving In Florida, Becky Saka

St. Thomas Law Review

This Comment examines the roadblocks that are stopping Florida from having an effective enforcement of Florida's texting while driving ban." Part II discusses the meaning and dangers of distracted driving. This part also focuses on Florida's legislative response to texting while driving by examining the current cellphone legislation in Florida. Part III specifically addresses why Florida's statute falls short from deterring Florida drivers from distracted driving. In addition, this part addresses why Florida has been resistant to proposed legislation to change Florida's current law. Finally, Part IV proposes amendments to Florida's law that will best allow Florida to deter drivers …

The Feel Of A Case: Virtue Decision-Making As The Correct Approach For Deciding Cases In Equity, Diego M. Pestana

St. Thomas Law Review

Section I of this Article will provide a brief history of Law and Economics, beginning with its origins in the judicial philosophy of legal realism as espoused by Oliver Wendell Holmes. Section II will discuss the American Hospital case, where Judge Posner memorialized the Leubsdorf- Posner Formulation for granting preliminary injunctions. Section III examines the effect of American Hospital on the lower courts in the Seventh Circuit. Section IV will discuss how the Supreme Court has dealt with preliminary injunctions as well as the factors the Court provided district courts to consider. Section V will describe Professor Solum's idea of …

Defending Self-Defense: Why Florida Should Follow The Eleven States That Already Allow For Campus Carry, Jennifer Garcia

St. Thomas Law Review

The supreme law of the land states: ". . .the right of the people to keep and bear arms shall not be infringed." The Supreme Court has found that the right to bear arms for self-defense is protected by the Constitution. Most states have expanded on this right and allow individuals to carry concealed weapons as long as they become licensed by the state. However, this right to carry concealed weapons is surely subject to limitations.' In the state of Florida, concealed weapon permit holders are prohibited from carrying on college or university campuses. This restriction is not beneficial to …

Lethal Injection Or Lethal Litigation: Florida's Amended Lethal Injection Protocol Opens The Door For Cries Of Cruel And Unusual Punishment, Cynthia Ventura

St. Thomas Law Review

In Florida, lethal injection has been the primary method of execution since the 1990s. The Florida Department of Corrections recently amended its protocol by replacing all three drugs previously used. The first administered lethal dose is now etomidate, an anesthetic that has never been used in the United States as a lethal injection drug. This Comment discusses the lack of empirical research available to support the state of Florida's use of etomidate as an appropriate method of rendering a prisoner unconscious prior to administering the second and third injections. First, this Comment will provide a brief background of the history …

Christianity And The Law: Trial Separation Or Acrimonious Divorce?, Michael Quinlan

Law Papers and Journal Articles

This article considers the relationship between Christianity and the law in Australia beginning with the arrival of the First Fleet and the declaration of the Swan River Colony. It examines in some detail the influence of the Western legal tradition and of Christianity on the jurisprudence relating to one elemental aspect of Western society: marriage. It considers the make-up of contemporary Australia, contemporary attitudes to religion and the relationship between law and religion in Australia. The article concludes that the once close relationship between law and religion may be better described today not as a trial separation but as an …

Constitutionality Of Communication Prohibitions Around Abortion Clinics, Greg Walsh

Law Papers and Journal Articles

Laws prohibiting a range of conduct in the vicinity of a hospital, clinic or other premise that performs abortions have been enacted in Tasmania, Victoria, the Australian Capital Territory and the Northern Territory. One of the prohibitions involves preventing certain types of communication around premises that perform abortion. It is unclear whether this prohibition is consistent with the implied freedom of political communication. A central consideration in determining whether the prohibition is compatible with the implied freedom is the extent of the burden imposed on political communication. The prohibition may be unconstitutional as it places a substantial burden on political …

Planet Netsweeper, Jakub Dalek, Lex Gill, Bill Marczak, Sarah Mckune, Naser Noor, Joshua Oliver, Jonathon Penney, Adam Senft, Ronald Deibert

Reports & Public Policy Documents

Internet filtering technologies play a critical role in shaping access to information online. Whether we are connecting to the Internet from our homes, coffee shops, libraries, or places of work, software that inspects, manages, and/or blocks our communications has become commonplace. When used at the level of large, consumer-facing Internet Service Providers (ISPs), Internet filtering technologies can have significant human rights impacts. A growing number of governments employ Internet filtering systems at this scale in order to undertake national-level censorship of the Internet. Filtered content ranges from pornography, hate speech, and speech promoting or inciting violence, to political opposition websites, …

The Global Problem Of Bisexual Erasure In Litigation And Jurisprudence, Nancy C. Marcus

Faculty Scholarship

As the rights of lesbians, gay men, bisexual people, and transgender people (“LGBT rights”) have received increasing protections across the globe in recent years, so-called gay marriage and other gay issues, and, more recently, transgender issues, have been prominent in recent legal discourse. In contrast, bisexuality has too often been omitted from legal rights discourse, with bisexual people who are barely acknowledged in LGBT-rights litigation and discourse beyond the minimal inclusion of the letter B in the acronym LGBT. This article examines the problem of bisexual invisibility and erasure within LGBT-rights litigation and legal discourse around the world. Although exposing …

Social License To Regulate: Consumer-Producer Collusion And Related Policy Risks For Consumer-Facing Regulation, Nathan D. Richardson

Faculty Publications

Used a gas can recently? If not, prepare for a surprise—they’ve become harder to use due to government-mandated design changes aimed at reducing air pollution. Faced with persistent environmental and other challenges, government regulators have increasingly turned to similar regulations on consumer products. But these consumer-facing regulations create new policy and political problems for regulators, different from those associated with traditional industry-facing regulation. This paper looks in depth at three case studies of consumer-facing regulation: emissions controls on gas cans, efficiency standards for light bulbs, and European vehicle fuel economy standards. In each case, there is strong evidence for widespread …

Police Body-Worn Cameras, Seth W. Stoughton

Faculty Publications

Since the summer of 2014, community members, politicians, and police executives across the country have called for greater police accountability and improvements in police-community relations. Body-worn cameras are widely seen as serving both ends. Today, thousands of police agencies are exploring, adopting, and implementing body-cam programs. A survey by the Major Cities Chiefs Association and the Major County Sheriffs’ Association found that 95% of surveyed agencies had either implemented or were committed to implementing a BWC program.

Body-worn cameras are here, and more are coming. Mary Fan, for example, has described a “camera cultural revolution” in which “the future will …

Centralized Review Of Tax Regulations, Clinton G. Wallace

Faculty Publications

Centralized oversight of agency policymaking and spending by the President’s Office of Management and Budget is a hallmark of the modern administrative state. But tax regulations have almost never been subject to centralized review. The Trump administration recently proposed to require centralized review of tax regulations, but it is unclear what regulations would be subject to such review or how it would be conducted.

This Article examines the normative desirability of the longstanding approach of exempting tax regulations from centralized review, and the alternative of imposing such review. Scholars and policymakers have provided various incomplete justifications for excepting tax policy …

Smarter Law Study Habits: An Empirical Analysis Of Law Learning Strategies And Relationship With Law Gpa, Jennifer M. Cooper, Regan Gurung

Saint Louis University Law Journal

Non-empirical law school study advice that emphasizes reading and briefing cases and memorizing rules, without frequent self-testing and formative self-assessment leads to a “law school learning trap.” Law students fall into a law school learning trap by focusing on memorization of cases and rules for class preparation, putting off “practice” application of the law as exam preparation. Law students and legal educators misjudge the power of testing as a learning tool, and instead rely on non-empirical, anecdotal resources to guide law student study methods.

A legal educator teamed up with an educational psychologist with a particular interest in pedagogical psychology, …

The Systems Fallacy: A Genealogy And Critique Of Public Policy And Cost-Benefit Analysis, Bernard Harcourt

Faculty Scholarship

This essay identifies the systems fallacy: the mistaken belief that systems-analytic decision-making techniques, such as cost-benefit or public policy analysis, are neutral and objective, when in fact they normatively shape political outcomes. The systems fallacy is the mistaken belief that there could be a nonnormative or scientific way to analyze and implement public policy that would not affect political values. That pretense is mistaken because the very act of conceptualizing and defining a metaphorical system, and the accompanying choice-of-scope decisions, constitute inherently normative decisions that are value laden and political in nature. The ambition of decision theorists to render policy …

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah S. Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market efficiency; but, I argue, closer to their heart is antistatist fear of entrenchment …

The Ideological Roots Of America's Market Power Problem, Lina M. Khan

Faculty Scholarship

Mounting research shows that America has a market power problem. In sectors ranging from airlines and poultry to eyeglasses and semiconductors, just a handful of companies dominate. The decline in competition is so consistent across markets that excessive concentration and undue market power now look to be not an isolated issue but rather a systemic feature of America’s political economy. This is troubling because monopolies and oligopolies produce a host of harms. They depress wages and salaries, raise consumer costs, block entrepreneurship, stunt investment, retard innovation, and render supply chains and complex systems highly fragile. Dominant firms’ economic power allows …

Regulatory Fracture Plugging: Managing Risks To Water From Shale Development, Caroline Cecot

Texas A&M Law Review

Debates about the desirability of widespread shale development have highlighted outstanding uncertainty about its health, safety, and environmental impacts—most prominently, its water-contamination risks—and the ability of current institutions to deal with these impacts. States, the primary regulators of oil and gas extraction, face pressure from the energy industry, local communities, and, in some cases, the federal government to strike the right balance between energy production and the health and safety of individuals and the environment—an elusive balance given the ongoing risk uncertainty. This dynamic is not especially unique to fracking, or even oil and gas extraction; instead, this dynamic, characterized …

Confronting Governmental Impunity And Immunity "From Below", Lawrence G. Albrecht

Valparaiso University Law Review

No abstract provided.

The Rule Of Law, Democracy, And Obedience To Law, Colleen Murphy

Saint Louis University Law Journal

No abstract provided.

Decarbonizing Light-Duty Vehicles, Amy L. Stein, Joshua P. Fershee

UF Law Faculty Publications

Reducing the United States’ greenhouse gas emissions by at least 80% from 1990 levels by 2050 will require multiple legal pathways for changing its transportation fuel sources. The Deep Decarbonization Pathways Project (DDPP) authors characterize transforming the transportation system as part of a third pillar of fundamental changes required in the U.S. energy system: “fuel switching of end uses to electricity and other low-carbon supplies.” The goal is to shift 80%-95% of the miles driven from gasoline to energy sources like electricity and hydrogen. Relying upon the DDPP analysis, this Article, excerpted from Michael B. Gerrard & John C. Dernbach, …

Security, Law & Public Policy - Assessing The Efficacy Of A National Security Vs. Law Enforcement Model To Combat Terrorism, Marvin L. Astrada

St. Thomas Law Review

The relationship between security, law, and public policy, generally speaking, is one fraught with tension. This is the case, in part, because security has the potential for limitless application. During the campaign and since taking office, candidate (and later President) Trump clearly espoused an emphasis on security in order to "Make America Great Again." Securitization measures from a political, economic, sociocultural, and foreign policy perspective were key pillars of President Trump's campaign and have informed Executive policy-making since Trump assumed office. In the present highly contentious political environment, wherein the Executive has vigorously articulated and pursued an expansive sociopolitical and …

Florida's Controlling Summary Judgment Rule 1.510(C) Contrasted With The Common Law-Created Rule Grounded On Two Conflicted Federal Cases, H Michael Muñiz

St. Thomas Law Review

Florida litigators, who are familiar with the Florida Rules of Civil Procedure, should not be surprised that the prescribed, controlling procedural rule to be followed as well as for a Florida state trial court to adjudicate a motion for summary judgment ("MSJ") is presumptively set forth within Rule 1.510 of the modem-day Florida Rules of Civil Procedure. The current rule expressly provides, in material part, "the judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled …

Protecting Florida's Marine Life With Conservation Drones, Daniel Grammes

St. Thomas Law Review

This comment analyzes drones under current Fourth Amendment jurisprudence and focuses on the issues contributing to unsustainable fisheries in Florida. Part II explains the basic concept of drones and discusses privacy issues through the Fourth Amendment as well as Florida marine patrol statutes that are relevant to an analysis of drone technology. Part III highlights that Florida's fisheries are at an unsustainable level because there are not enough Florida marine patrol officers and the simplicity of disposing illegally harvested wildlife into the ocean. Part IV suggests that Florida adopt legislation authorizing a drone enforcement program for marine patrol. Part V …

Falcon V. State: Should The Florida Supreme Court Have Opened The Door For Sentencing Review Of Juveniles Sentenced To Life In Prison For Murder?, Jamie L. Wilson

St. Thomas Law Review

This Comment addresses the implications on victim's families and society regarding the resentencing and future sentencing of juveniles who have been convicted of murder. Specifically, this Comment will focus on the factors judges are required to consider before a life sentence is imposed, while proposing a solution to balance the factors in order to ensure victim's rights are not overlooked. Part II explores the required juvenile sentencing factors mandated by the United States Supreme Court in Miller, and further explores Florida's response as evidenced in Falcon, Atwell v. State, and Landrum v. State. Part II further discusses Florida's previous statutory …

Battle Of The Bayou: Placing A Receiver In The Right Position During A Bankruptcy Proceeding, Antonio M. Dinizo Jr.

St. Thomas Law Review

Investment Manager, Sam Israel, launched the Bayou Group LLC, a hedge fund, hoping to produce large returns for high net worth investors. After months of losses, it became clear to Israel that Bayou would never garner the types of returns he had promised investors. Instead of altering strategies or closing Bayou, Israel decided to convert Bayou into a Ponzi scheme. When Ponzi schemes fail, they present unique challenges for courts, regulators, creditors, and interested parties. One choice stakeholders will have to make is whether to appoint a receiver to marshal assets and seek a recovery for defrauded investors and creditors, …

Tsai Today (2018), Southern Methodist University, Dedman School Of Law, Tsai Center For Law, Science And Innovation

Tsai Today

No abstract provided.

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth." This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Implementing Shared-Use Of Mining Infrastructure To Achieve The Sustainable Development Goals, Perrine Toledano, Nicolas Maennling

Columbia Center on Sustainable Investment Staff Publications

Many of the Sustainable Development Goals will only be achieved if the population has access to basic services, such as access to water, power, transport, and telecommunications. However, in many developing countries there is a lack of infrastructure to guarantee these services and there are insufficient public funds to finance growing needs. In resource-rich countries, the mining sector can play a key role in increasing access to infrastructure. Mining-related infrastructure is often developed to serve the exclusive need of the investors, but if it is shared and developed to serve the broader needs and uses of the host economy it …

Gender, Race & The Inadequate Regulation Of Cosmetics, Marie C. Boyd

Faculty Publications

Scholars and other commentators have identified failures in the regulation of cosmetics-which depends heavily on voluntary industry self- regulation-and called for more stringent regulation of these products. Yet these calls have largely neglected an important dimension of the problem: the current laissez-faire approach to the regulation of cosmetics disproportionally places women, and particularly women who are members of other excluded groups, at risk. This Article examines federal cosmetics law and regulation through a feminist lens. It argues that cosmetics law and regulation have lagged behind that of the other major product categories regulated by the Food and Drug Administration under …