Florida State University law review. Florida State University. College of Law最新文献

{"title":"Expectations in the Mirror: Lawyer Professionalism and the Errors of Mandatory Aspirations","authors":"Keith W. Rizzardi","doi":"10.2139/ssrn.3490770","DOIUrl":"https://doi.org/10.2139/ssrn.3490770","url":null,"abstract":"For years, Florida has been a leader in the professionalism movement, and state leaders have created new documents and standards to make professionalism enforceable. The rest of the nation can learn from Florida’s errors, because the Sunshine State has blurred the lines between professionalism and legal ethics. In fact, history shows that Florida is simply repeating the same mistakes that have been addressed time and time again as our system of legal ethics has evolved. At times, Florida’s professionalism concepts even contradict themselves. Indeed, from a jurisprudential perspective, even H.L.A. Hart and Lon Fuller— who otherwise disagreed over the morality of law—would probably agree that Florida’s attempt to mandate professionalism is fundamentally flawed. This Article calls for more realistic expectations in the professionalism dialogue and offers five recommendations. First, the content of the professionalism documents—and the “Professionalism Expectations” in particular—should be reduced, and limited to worthy, not banal, aspirations. Second, some of the ideas currently labelled as professionalism actually reflect minimum demands of lawyering that should be integrated into the rules or commentary of legal ethics. Third, abundant options exist for improved professionalism education, but a more informed and strategic approach is needed. Fourth, mandatory mentoring could serve as a constructive alternative to the current quasi-disciplinary panel process. Finally, if mandatory professionalism is to remain, a more transparent system is needed, both to comply with the Florida Constitution and to maintain credibility. Ultimately, while recognizing the problems with lawyer professionalism, this Article concludes that Florida’s bifurcated system of ethical rules and professionalism standards is significantly flawed—just like the people it regulates.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"76 1","pages":"691-772"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83306354","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Conservative Praxis and Women in the Infantry","authors":"Sam Walenz","doi":"10.2139/ssrn.3010274","DOIUrl":"https://doi.org/10.2139/ssrn.3010274","url":null,"abstract":"","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"23 1","pages":"593-612"},"PeriodicalIF":0.0,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86410496","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Voting is Association","authors":"Daniel P. Tokaji","doi":"10.2139/SSRN.2832105","DOIUrl":"https://doi.org/10.2139/SSRN.2832105","url":null,"abstract":"What’s the relationship between the First Amendment right to expressive association and the Fourteenth Amendment right to vote? It’s closer than you probably think. The Supreme Court employs a balancing test in constitutional challenges to a wide variety of election practices, including ballot access rules, blanket primaries, and voter identification. This standard is commonly referred to as “Anderson-Burdick” for the two main cases from which it derives, Anderson v. Celebrezze and Burdick v. Takushi. Commonly overlooked is that the Anderson-Burdick standard is the offspring of a union between the Fourteenth Amendment right to vote and the First Amendment right of association. This article explores the origins, development, and subsequent obscuration of the relationship between voting and associational rights. Central to this story are two opinions by Justice John Paul Stevens, the first (Anderson) written early in his tenure on the Supreme Court and the second (Crawford v. Marion County Election Board) near the end. After canvassing the Court's voting-association cases, the article argues for renewed recognition of this link when it comes to contemporary burdens on participation, closing with some thoughts on the applicability of the First Amendment right of association to partisan gerrymandering claims. Voting restrictions implicate expressive association to the extent they prevent voters from joining together with like-minded others, candidates, and political parties. Reviving the voting-association link would cast current voting rights cases in a different light, one that more accurately reflects the real-world dynamic in these cases. These disputes are not simply or even mainly about an individual’s right to cast a ballot. They are best understood as inter-party disputes, in which political insiders seek to block outsiders from aggregating their votes so as to challenge the dominant party. The focus would accordingly shift to a voting law or practice’s disparate impact on likely supporters of the non-dominant party, a question that has been in the background but not the foreground of most recent cases.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"34 1","pages":"763-792"},"PeriodicalIF":0.0,"publicationDate":"2016-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81084738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Intermediate Scrutiny for Corporate Political Contributions","authors":"J. Leahy","doi":"10.2139/SSRN.2783970","DOIUrl":"https://doi.org/10.2139/SSRN.2783970","url":null,"abstract":"A corporation contributes to a Super PAC that supports a candidate for public office. A shareholder sues, alleging that management breached its duty of loyalty by making the contribution to promote its own political views rather to serve than the corporation’s best interests — i.e., by acting in bad faith. What standard will a Delaware court apply when reviewing management’s decision to cause the corporation to make the contribution?Myriad scholars have opined that the court will apply the standard of review for ordinary business decisions: the management-friendly business judgment rule. Unfortunately for our shareholder plaintiff, this rule presumes that management acts rationally, without a conflict of interest — and in good faith. Further, management can easily concoct a justification for supporting any major-party political candidate. Thus, absent a “smoking gun” that points to bad faith, it will be extremely difficult for a shareholder to prove that management has acted disloyally. This article departs from the scholarly consensus that courts should apply the business judgment rule to review corporate political contributions. Instead, courts should apply the intermediate level of scrutiny — the Unocal test — that is applied whenever management adopts defensive measures in the face of a hostile takeover. Delaware courts apply Unocal to defensive measures due to the “omnipresent specter” that management will promote its own interests over the corporation’s best interest. Under Unocal, management must earn the protection of the business judgment rule by establishing the reasonableness and proportionality of its defensive actions. Courts evaluating management’s decision to make a Super PAC contribution should apply Unocal for two related reasons. First, like corporate charitable donations, corporate political contributions give rise to serious agency cost concerns. These same concerns led prior commentators to propose applying intermediate scrutiny to charitable contributions; post-Citizens United, this proposal should be updated to include corporate political contributions. Second, upon closer review, corporate Super PAC contributions give rise to greater agency cost concerns than corporate charitable gifts, due to the increased potential of management pretext in the former context. Indeed, although corporate Super PAC contributions do not pose an inherent conflict between management and the corporation, the possibility of pretext is so great that there an “omnipresent specter” that management will serve its own purposes whenever it causes the corporation to make a political contribution.Therefore, by analogy to Unocal, a court evaluating a corporate political contribution should ask (1) whether management had reasonable grounds to believe that the contribution would directly or indirectly advance specific corporate interests, rather than some general political viewpoint; and (2) whether the contribution was reasonable, both as a method of addr","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"30 1","pages":"1119-1224"},"PeriodicalIF":0.0,"publicationDate":"2016-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88901240","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women to Protect the Child","authors":"M. Kalmanson","doi":"10.2139/SSRN.2742842","DOIUrl":"https://doi.org/10.2139/SSRN.2742842","url":null,"abstract":"The practice of American prisons to shackle and otherwise restrain incarcerated, pregnant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to/from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how the practices invade the woman’s civil liberties, Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices — safety of others, safety of the woman herself, and securing flight risks. What these discussions oversee and this paper confronts the State’s interests in fetal rights and then, after birth, the child’s rights as a constitutionally protected person. Shifting the shackling discussion to protecting the child, this paper argues that shackling policies should be banned in all American institutions.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"30 1","pages":"851-882"},"PeriodicalIF":0.0,"publicationDate":"2016-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2742842","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72397290","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Narratives of Gene Patenting","authors":"J. Contreras","doi":"10.2139/SSRN.2485681","DOIUrl":"https://doi.org/10.2139/SSRN.2485681","url":null,"abstract":"The debate over gene patenting in the United States has been ongoing for nearly three decades. It reached a climax in June 2013, with the Supreme Court's decision in Assn. for Molecular Pathology v. Myriad Genetics. The Myriad case was remarkable for many reasons, not least because it fostered the engagement of hundreds of scientists, physicians, patients, lawyers, activists and policy makers, each of whom expressed a view regarding the case and gene patenting, more generally. From this multitude of voices emerged six distinct narrative types that recounted the \"facts\" in the case. I have termed these the Science, Innovator, Administrative, Access, Dystopian and Congestion narratives. In this article, I trace the origins of each of the narrative types in Myriad from press accounts, published literature and the record in the case, including nearly one hundred separate amicus briefs filed at all stages of the litigation. I then assess how each narrative type influenced and became incorporated into the resulting judicial decisions. There is a strong correlation between the narrative types employed by a speaker and the normative case outcome desired by that speaker. This correlation occurs not only when the narrators are litigants or amici curiae, but also judges. This finding suggests that the judges issuing decisions in the case calibrated the narratives or \"facts\" expressed in their opinions to align best with the doctrinal outcomes that they desired.The six narrative types that emerged in Myriad also constitute at least a partial taxonomy of narrative types within the broader realm of disputes involving new technology, scientific discovery and innovation. Thus, whether a dispute involves gene patenting, genetically modified organisms, nanotechnology or self-driving vehicles, it is likely that some or all of the narrative types in the Myriad case will make an appearance. However, the same narrative types in different technological settings do not always appear to support the same doctrinal outcomes. Thus, narrative type cannot be said to be determinative of case outcome without additional context provided by the narrator’s perspective, audience and worldview.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"22 1","pages":"1133-1200"},"PeriodicalIF":0.0,"publicationDate":"2016-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83483030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Relational Criminal Liability","authors":"S. Morrison","doi":"10.2139/SSRN.2708932","DOIUrl":"https://doi.org/10.2139/SSRN.2708932","url":null,"abstract":"“Relational criminal liability,” or one person’s criminal liability for the actions of another by way of a group of which both individuals are a part, generates a fundamental tension between collectivist and individualist approaches to liability. The collectivist approach, which reifies the group qua group, enables individuals to be liable for the acts of the group, and the group liable for the acts of individuals. The individualist approach treats individuals qua individuals, holding them liable only for their own conduct.This tension sounds both in moral philosophy and legal theory. As to philosophy, Michael Bratman, Margaret Gilbert, and Christopher Kutz take an ultimately individualistic approach to assigning moral responsibility in a group context. John Searle, Raimo Tuomela, and others posit irreducible collective bodies, capable of intent and agency distinct from those of their individual members. As to legal theory, long-standing American legal norms treat individuals as individuals, whereas work by George P. Fletcher and, more recently, Gideon Yaffe and Jens David Ohlin suggest a collectivist turn.The tension remains unresolved, producing inconsistency, unpredictability, and normative failures in the determination of relational criminal liability. This article relieves that tension by showing, through an exposition of the relevant moral philosophy, legal theory, and case law that an individualist approach best accounts for the concerns of collectivists and individualists alike. This account details the normative contours of relational criminal liability from the standpoint of mens rea, actus reus, and causation. It also addresses legitimate concerns regarding omissions law and the defense of abandonment. Finally, it develops a normative test for relational criminal liability and applies that test to a taxonomy of relational criminal liability, which includes the many theories of liability that fall under the relational label. It concludes that most, but not all, aspects of relational criminal liability are normatively justified, and that many of its criticisms are better understood as aimed not at the substantive liability itself, but at external failures that sound in procedure, interpretation, and sentencing.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"15 1","pages":"635-690"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79032220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Second Amendment Burden: Arming Courts with a Workable Standard for Reviewing Gun Safety Legislation","authors":"M. Kalmanson","doi":"10.2139/SSRN.2709435","DOIUrl":"https://doi.org/10.2139/SSRN.2709435","url":null,"abstract":"Two hot-button topics; one framework. Second Amendment jurisprudence lacks a workable standard under which courts are to review gun control legislation. This paper presents an intersectional argument that (1) the abortion “undue burden” framework can be translated to Second Amendment legislation; (2) increased gun control provisions, like those recently proposed or discussed, are constitutional under current abortion framework. Though abortion is at the center of this discussion, this piece does not aim to contribute to reproductive rights discourse and accepts prima facie the current-standing framework.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"74 1","pages":"347-384"},"PeriodicalIF":0.0,"publicationDate":"2015-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89584602","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims","authors":"M. Kalmanson","doi":"10.2139/SSRN.2681302","DOIUrl":"https://doi.org/10.2139/SSRN.2681302","url":null,"abstract":"The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current state-based system inadequately serves victims of domestic violence, and previous U.S. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one’s human rights, fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established it responsibility for protecting U.S. citizens from this human rights violation. Thus, this paper contends that a federal statutory solution creating federal liability against a state for failing to protect domestic violence victims should be enacted in accordance with the United States’ responsibility under the American Declaration.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"23 1","pages":"1359-1408"},"PeriodicalIF":0.0,"publicationDate":"2015-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89058038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls","authors":"Joshua A. Douglas","doi":"10.2139/SSRN.2597767","DOIUrl":"https://doi.org/10.2139/SSRN.2597767","url":null,"abstract":"Mistakes happen – especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election reforms, this idea is likely to gain traction and see actual implementation. That is because the idea is “non-legal” in nature, in that it comes from the private sector and is achievable outside of the political process. Given the structural impediments to legislative or judicial change, non-legal solutions such as the use of checklists are the way forward in election reform.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"1 1","pages":"353-398"},"PeriodicalIF":0.0,"publicationDate":"2015-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86295545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}