Law and Society Commons^™

Legislatively Inhibiting Children's Development Of The Mens Rea To Commit Genocide During Adulthood, Susan H. Bitensky

University of Florida Journal of Law & Public Policy

This Article concerns how legislatures in America are stanching development of the criminal intent to commit genocide. Lawmakers have taken aim at genocide, not through the barrel of a gun, but, rather, by imbuing schoolchildren with values and psychological attributes that gradually counteract development of a génocidaire’s mens rea. Of course, sans mens rea, sans perpetration of this, the “crime of crimes.”

The counteractant process is the result of joining a substantively targeted pedagogy with the force of law so as to create state genocide-education mandate statutes. There has been a certain prescience in this. Accumulating expert opinion, studies, and …

A Quiet Privilege: Garrity, Internal Investigations, And The Need For A Preference Of Silence Among Public Employees, Jacob Abel

University of Florida Journal of Law & Public Policy

When a public employee is asked to testify against themselves or face termination, they are presented with a trilemma. They may choose to respond to questions falsely, answer truthfully, and suffer criminal sanctions, or remain silent and lose their job. In Garrity v. New Jersey, the Supreme Court resolved this trilemma by ruling that, when a public employee is compelled to answer questions, the Fifth Amendment grants the employee immunity for their testimony. The Supreme Court “solved” the trilemma again, in Gardner v. Broderick, by saying that an employee who is fired for invoking their Fifth Amendment right …

Where "Woke" And The Written Word Go To Die: How Florida's Newest Book Ban Law Violates The Fourteenth And First Amendments, Sarah N. Powell

University of Florida Journal of Law & Public Policy

The fight over banned books is as old as the nation itself. However, the number of book objections and removals in public schools has increased dramatically in the past two school years. According to PEN America, a national free speech group, Florida currently leads with the highest number of book bans in the nation: “[o]ver 40 percent of all book bans [in the U.S.] occurred in school districts in Florida.”

Vague statutory language and procedures in recent legislation have made banning books even easier. This Note challenges the constitutionality of section 1006.28, Florida Statutes (2024), one of Florida’s newest book …

The Danger Of Dobbs: Substantive Due Process, Fundamental Rights, And A Critique Of The Theory Of Historical Tradition, Parker J. Wilkson

University of Florida Journal of Law & Public Policy

Central to the Supreme Court’s holding in Dobbs v. Jackson Women’s Health Organization that the right to obtain an abortion would no longer be recognized as a fundamental right is the theory of historical tradition: the view that the only liberty interests recognized as fundamental rights under the Due Process Clause are those that are “deeply rooted in this Nation’s history and tradition.” This Note argues that the theory of historical tradition should not set the outer boundaries of fundamental rights. In demanding that a fundamental right find support in the Nation’s history and tradition, the Supreme Court imports a …

Delayed & Denied: How One Court's Interpretation Of Emtala Obstructs Emergency Abortion Care & Threatens Women's Health, Christina Dalton

University of Florida Journal of Law & Public Policy

This Note addresses whether EMTALA preempts state abortion bans in the context of a medical emergency. Part I provides background information on the Dobbs decision and how states responded, discusses the Department of Health and Human Services’ interpretation of EMTALA’s preemptive effect, and introduces the competing district court cases. Notably, the analysis of these district court cases focuses on the relevant state abortion bans as they existed at the time of each decision. Part II discusses EMTALA, specifically Congress’ intent in enacting the statute and the obligations it imposes on hospitals and physicians. Part III then provides an overview of …

Will The Court Use Dobbs To Overturn Sullivan? Revisiting The Sullivan Decision In The Age Of Digital Media, Skylar Tess Ivey Detjen

University of Florida Journal of Law & Public Policy

New York Times Co. v. Sullivan is a landmark Supreme Court decision that significantly expanded protection for the press under the First Amendment by limiting public officials’ ability to sue for defamation. The ruling established the “actual malice” standard, requiring public officials to prove that defamatory statements were made with knowledge of their falsity or with reckless disregard for the truth. In recent years, Justice Thomas has repeatedly criticized Sullivan, arguing that the decision is more a product of judicial policymaking than of constitutional interpretation, with minimal grounding in the text or history of the First or Fourteenth Amendments. …

Battling The Form: A Front-End Approach To Default-Use Noncompetes, Rachel Arnow-Richman

University of Florida Journal of Law & Public Policy

A growing consensus holds that employer overuse of noncompete agreements adversely affects workers and the economy. But there is little agreement on how best to regulate these instruments. States have experimented with an array of idiosyncratic reforms that capture the most egregious misuses, while the Federal Trade Commission (FTC), has issued an outright ban that would prohibit all employee noncompetes and comparable instruments nationwide.

This Article argues that any effective reform strategy must target what it terms “default-use” noncompetes—boilerplate restraints imposed by employers as a matter of course without close consideration of their underlying justification. Some unlawful noncompetes are clearly …

"What's In A [Dead] Name?": Title Vii Protections Against Misgendering And Deadnaming Of Gender Diverse Individuals, Mackenzie O'Connell

University of Florida Journal of Law & Public Policy

The Supreme Court’s 2020 holding in Bostock v. Clayton County monumentally altered the availability of employment discrimination claims under Title VII to individuals identifying as members of the LGBTQ+ community. The Court did so by finding that the meaning of Title VII’s prohibition of workplace discrimination “because of sex” includes discrimination against individuals on the basis of their homosexual or transgender statuses. The effects of this decision on other aspects of employment litigation are still uncertain.

Pre-Bostock, transgender and non-binary individuals were largely left without a legal remedy under Title VII for hostile work environment sexual harassment claims. …

Up In Smoke: Preparing The Air Force For The Legalization Of Marijuana, Major Jeffrey D. Baldridge

University of Florida Journal of Law & Public Policy

Over the last four decades, public sentiment regarding marijuana has changed drastically. Many states now allow medicinal marijuana to be prescribed and consumed, while some even permit recreational use. The federal government, as both sovereign and employer, is behind the curve. In both roles, the federal government has failed to act meaningfully. Lax enforcement and the shift in public sentiment will force Congress and the President to enact some significant changes to marijuana law in the very near future. If no action is taken, a dramatic clash between state and federal law will ensue within the nation’s court system.

The …

Uncharted Boundaries: Exploring Geofence Warrants As An Investigaive Tool In Abortion-Related Criminal Investigations Post-Roe, Denise Cespedes

University of Florida Journal of Law & Public Policy

With the reversal of the federal right to abortion, the landscape of reproductive rights in the United States has undergone a seismic shift. In this new era, there are troubling questions surrounding how law enforcement agencies may seek to utilize investigative techniques to enforce restrictive abortion laws. One such possible method is the use of a modern investigative tool referred to as geofence warrants. Existing legal scholarship surrounding the topic of geofence warrants seeks to examine their constitutionality under the Fourth Amendment. Instead, this Article seeks to explore the implications associated with the potential use of geofence warrants within the …

Surveillance And Policing Today: Can Privacy And The Fourth Amendment Survive New Technology, Artificial Intelligence And A Culture Of Intrusion?, Jon L. Mills, Caroline S. Bradley-Kenney

University of Florida Journal of Law & Public Policy

We are on the verge of a surveillance state. New technologies enable intrusions unimagined two decades ago. Our current culture voluntarily provides intimate personal details that are available to the world and to law enforcement. Current interpretations of Fourth Amendment privacy protections are failing to protect individuals from this brave new world. This Article describes the current state of technology, culture, and deficiencies in the law. We propose a specific test that can provide a workable approach to current and emerging intrusions. That test expands upon existing theories, like the mosaic theory and a reformation of the third-party doctrine, but …

How To Close Pandora's Dox: A Case For The Federal Regulation Of Doxing, Hannah Shankman

University of Florida Journal of Law & Public Policy

Doxing, or the sharing of one’s personally identifiable information on the Internet without consent, saw a boom during the COVID-19 pandemic. It became a way for Internet users to punish people for racist, rude, or anti-masking behavior and to quench a collective thirst for justice. While some continue to view doxing as an exercise in accountability, it is a malleable tool that can suit anyone’s aim. White supremacists, neo-Nazis, and the alt-right regularly resort to doxing those with whom they disagree. Beyond the harassment, financial harm, and death threats doxing victims face, it is a tactic that is counter to …

Holding States Accountable For Harmful Algal Blooms: Florida's Water Crisis In Focus, Jason Totoiu, Jaclyn Lopez

University of Florida Journal of Law & Public Policy

Scientists generally agree that agricultural runoff is a principal source of nutrient pollution in the United States. Intensive agricultural practices have resulted in decades of phosphorus and nitrogen accumulating in the natural system which continue to contribute substantially to nutrients entering watersheds. Coupled with failed water quality control measures, this water pollution has led to some of the worst harmful algal blooms (HABs) in recorded history. These nonpoint sources need to be addressed to restore and protect water quality.

Florida’s Lake Okeechobee watershed provides an apt case study. Commonly referred to as the “liquid heart” of the Everglades, the lake …

Hidden In Plain Sight: Two Models Of Medicare Privatization, Hannah Ruth Leibson

University of Florida Journal of Law & Public Policy

Medicare and private insurance are often cast as diametrically opposed forces. This framing is not only inaccurate, but it obscures the dynamic relationship that has existed between these entities for several decades. Private insurers have been playing an active role in Medicare delivery since its passage in 1965, and their role has expanded over time.

This Article seeks to illuminate the way privatization has impacted Medicare and what current privatization policy choices mean for its future. This Article draws from the copious literature on government administration and privatization to explain two key models of privatization within the Medicare program. Highlighting …

The Pro-Choice Case For Overturning Roe V. Wade: A New Constitutional Home For Reproductive Rights, Jordan Grana

University of Florida Journal of Law & Public Policy

Reproductive rights, despite their white-hot controversial nature in the last decades of American politics and their life-changing impact on those who are denied such rights, are a constitutional anomaly. More than any other right forced to take shelter with the right to privacy in the Fourteenth Amendment’s cramped Due Process Clause, reproductive rights are in danger of losing their federal constitutional protection. This Note posits that pro-choice activists must abandon Roe v. Wade and its progeny––not because the cases are wrong, but simply because they are unlikely to survive much longer. Instead, the goal of preserving access to reproductive rights …

Black Culture Is "Professional": Causation After Bostock & Racial Stereotypes, Adriante Carter

University of Florida Journal of Law & Public Policy

Employment discrimination has progressed past the days of overt prejudices. In today’s society, employment discrimination manifests as stereotypes that perpetuate negative results. Those who suffer from stereotypic discrimination have long been denied redress for these wrongs. The U.S. Supreme Court’s decision in Bostock, this Note argues, is a way forward. This Note argues that case law has developed, and should continue to develop, in a way that recognizes racial stereotyping as discriminatory. This Note explores the history of this case law and examines how the theory of causation from Bostock can be used to better the jurisprudence on racial …

"I Don't Work For Free": The Unpaid Labor Of Child Social Media Stars, Amber Edney

University of Florida Journal of Law & Public Policy

Today, some of the biggest child stars are not getting their start on the silver screen. Instead, they are finding success through their (or their parent’s) smartphones. The explosion of social media over the past few years has created a new type of child star: the kid influencer or “the kidfluencer.” These children appear alone or alongside their families to discuss child’s clothing, toys, and other family-related topics. If they gain enough followers, they may be able to monetize their social media accounts and obtain sponsorships from big brands such as Walmart and Mattel. Even though the method of achieving …

Splitting Heirs: How Heirs' Property Continues The Legacy Of Challenges To The Accumulation Of Wealth For Black Americans, Ryan Cook

University of Florida Journal of Law & Public Policy

When people die without executing estate planning instruments, their real property is divided to their heirs as tenants in common. Property owned in this arrangement is called heirs’ property. The issues associated with heirs’ property are compounded when several generations pass without proper estate planning, and interest in the real property becomes highly fractionated. African Americans are more likely to die without wills, so the risks of heirs’ properties are disproportionally felt by people of color. One threat to heirs’ property arises when third parties buy out one heir’s share to force a partition sale. The Uniform Partition of Heirs …

Minimum Wage Enforcement: The Unfinished Business Of Florida's Constitutional Amendment, Alexis P. Tsoukalas, Jenn Round, Janice Fine, Daniel J. Galvin

University of Florida Journal of Law & Public Policy

Prior to 2004, Florida was one of seven states without its own minimum wage. In 2004, state voters overwhelmingly passed a ballot initiative that enshrined the right to a state minimum wage in Florida’s Constitution. In 2020, voters passed a second ballot initiative that gradually raises Florida’s minimum wage to $15 per hour. Despite bipartisan voter support, the Authors found that since 2004, the State has taken no formal actions to enforce Florida’s minimum wage law. Further, the Authors’ analysis of U.S. Census data demonstrated that amid the failure of State enforcement, minimum wage violations rose dramatically, disproportionately impacting women, …

Specialized Judicial Empowerment, Zhiyu Li

University of Florida Journal of Law & Public Policy

Specialized courts have emerged as a useful addition to courts of general jurisdiction in the contemporary world. These courts allocate judicial resources by assigning complex and technical cases to specialized judges and resolve social problems through legal and nonlegal remedies. Countries around the world recognize the benefits of entrusting a specialized judiciary in alleviating generalist courts’ dockets, delivering high-quality judgments, and advancing the consistency of law. In the United States, specialized benches have been established at both the federal and state levels. In recent decades, Europe has also experienced steady growth in judicial specialization.

In 2014, the People’s Republic of …

Protecting And Preserving The Dead: Georgia Cemetery Law And Sea Level Rise, Hunt Revell

University of Florida Journal of Law & Public Policy

Georgia coastal cemeteries are one of many facets of modern life that are at-risk due to the sea level rise—and its increased erosion, flooding, and storm surge—brought on by climate change. The unique historical development and property rights associated with the graveyard require investigation to better understand the opportunities available for environmental mitigation and cemetery relocation. Georgia law, like the law in many states, includes statutes regulating modern “perpetual care” cemeteries, as well as older “abandoned” cemeteries. The statutory factors and requirements for disinterment and relocation require careful analysis and thoughtful planning. Common law in the state also sheds light …

Civil War Ii: The Consitutionality Of California's Travel Bans, Beckett Cantley, Geoffrey Dietrich

University of Florida Journal of Law & Public Policy

California, along with a few other states leaning toward the liberal side of America’s political system, enacted a series of laws banning state-funded or state-sponsored travel to other states identifying more as conservative. While other states enacted these mandates through gubernatorial executive orders, California legislated its ban. Multiple states have attempted Supreme Court challenges to California’s law under the Court’s Article III original jurisdiction. Yet, the Court twice declined the opportunity to hear the issue. Justice Thomas and Justice Alito wrote extensive dissents against the majority’s rejection, arguing that the Court must exercise its jurisdiction in controversies between the states. …

Regulating International Commercial Surrogacy: A Balance Of Harms And Benefits, Sophia Shepherd

University of Florida Journal of Law & Public Policy

International surrogacy can produce great joy, as well-paid surrogates help produce healthy children for caring parents. However, many current cross-border surrogacy arrangements occur under conflicting citizenship laws, which can leave surrogate-born children stateless and their intended parents fighting for parental rights. In addition, without sufficient regulation, international surrogacy can lead to abuses, including exploitation of surrogate mothers and abandonment of surrogate-born children. At the other extreme, excessive regulation, including prohibition, can also cause great harm as surrogates and intended parents are denied surrogacy’s benefits. Moreover, inadequate regulation can quickly lead to prohibition, as abuses cause a country to flip from …

Negotiating Social Change: Backstory Behind The Repeal Of Don't Ask, Don't Tell, Linell A. Letendre, Hal Abramson

University of Florida Journal of Law & Public Policy

This Article is about negotiating social change in the largest U.S. institution, the Military and its five Services. Inducing social change in any institution and society is notoriously difficult when change requires overcoming clashing personal values among stakeholders. And, in this negotiation over the repeal of Don’t Ask, Don’t Tell (DADT), clashing values over open service by gays and lesbians were central to the conflict. In response to President Obama’s call to repeal DADT, the Secretary of Defense selected a Working Group to undertake studies, surveys and focus groups to inform the debate. During the nine-month process of gathering a …

Educational Malpractice: Is It A Tort Whose Time Has Come? An Exploratory Mixed Methods Study, Todd A. Demitchell, Stefanie King, Terri A. Demitchell

University of Florida Journal of Law & Public Policy

Peter Doe, a high school student with an average IQ and an average attendance record, graduated from high school in 1972. His reading ability at the time of graduation was approximately at the fifth-grade level. Peter Doe brought suit against the school district and its employees for negligence resulting in his inability to read and write. He sought damages of $500,000. The plaintiff claimed that these actions resulted in depriving him of basic academic skills thus limiting his lifetime stream of earnings. In other words, he asserted that he was injured because the school district and its “teachers negligently or …

A Call For Constitutionalizing The Affirmative Insanity Defense, Mia C. Larson

University of Florida Journal of Law & Public Policy

This Note sheds light on varied insanity defense formulations which fail to adequately protect the constitutional rights of people deemed legally insane. An emerging trend has arisen whereby states adopt alternative approaches to legal insanity focused solely on the mental state of a criminal offender at the time the offender committed a crime. Rather than operating as an excusal from criminal liability, this alternative approach offers insanity as mitigating evidence to be used at the sentencing phase of trial. The result is that a person deemed not guilty in a state employing the affirmative defense could be deemed guilty in …

Don't Make A Run For It: Illinois V. Wardlow In Light Of Police Shootings And The Nature Of Reasonable Suspicion, Edith Perez

University of Florida Journal of Law & Public Policy

Fear and distrust of law enforcement have been longstanding in the Black community. Those in power have fueled this fear and distrust through brutal beatings, harassment, and general discrimination. The reasonable suspicion standard is problematic because it allows for unchecked biases to guide interactions between police officers and minorities, creating incentives to persecute. But today, a new tool exacerbates this problem and makes escaping the violence nearly impossible, deepening the contempt, and spreading its adverse effects: the media. Using a hierarchy of “if it bleeds it leads,” the capitalistic fear-based media targets the anxieties and biases of Americans, creating a …

A Palatable Option For Sugar-Coated Palates: Labeling As The Libertarian Paternalism Intervention That American Consumers Need, Nicholas G. Miller

University of Florida Journal of Law & Public Policy

No abstract provided.

Pay For Play In College Athletics: Why Cost Of Attendance?, Danielle Day

University of Florida Journal of Law & Public Policy

No abstract provided.

Fiscal Geography, Eric A. San Juan

University of Florida Journal of Law & Public Policy

No abstract provided.