St. Thomas Law Review

Covers articles submitted by faculty and members of the bench and bar nationwide.

Articles

Vol. 26, No. 4, Summer

The Contract: Between Contract Law and Criminal Jurisprudence
INTRODUCTION Contract law is the backbone of civil jurisprudence, and at its center stands the contract itself, in all of its splendor. Literature and case law alike have dealt with fundamental questions relating to the contract: What gives a contract...
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Ghosts Have Rights Too! A New Era in Contractual Rights: Third-Party Invocation in Forum Selection Clauses
I. THE LEGEND OF THE GHOST PARTY Imagine for a moment that you own a business that operates as a normal business would; regularly developing relationships and conducting business with other businesses that, in turn, conduct additional business with...
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Donee Beneficiaries and the Parol Evidence Rule
Donee beneficiaries are pretty peculiar. They own the rights created by a contract created by others. Their rights have primacy over the promisee's rights (1) but the promisees have enforceable rights as well. (2) The donee beneficiaries may be totally...
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Designing and Constructing Commercial Agreements in the 21st Century
In the 21st century, commercial agreements crafted by attorneys structure relationships in which the administration and execution of those relationships is largely, if not exclusively, governed through the use of digital technologies. These technologies...
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Introducing the "New Handshake" to Expand Remedies and Revive Responsibility in eCommerce
I. INTRODUCTION There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake....
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The Right to Contract as a Civil Right
The "right to contract," whether originating in the Constitution, common law, or natural law, has been long and widely felt to be in tension with our civil rights, broadly conceived. (1) The individual himself, we generally believe, and only the individual,...
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Emergence of Contract Standards and Its Future Impact on Legal Education
1. LAW AND TECHNOLOGY Let me start with a story. It was almost thirty years ago that I graduated from Harvard Law School and joined my first law firm. I distinctly remember my first assignment, which was to draft a credit agreement. Despite my education,...
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The Judicial Vision of Contract - the "Constructed Circle of Assent" and Printed Terms
The perennial dilemma of modern contract law is the effect to be accorded standardized terms, the printed "boilerplate" terms that appear in the overwhelming majority of contracts and are typically ignored. (1) The dilemma has been exacerbated by recent...
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Comparative and Normative Analysis of Damages under the SGA and the CESL
INTRODUCTION This article strives to analyze the rules concerning monetary damages under two different legal regimes for the sale of goods: the Sale of Goods Act of 1979 (1) ("SGA") and the Proposal for a Common European Sales Law in 2011 ("CESL")....
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Vol. 26, No. 3, Spring

The Admissibility of Weapons Not Used in the Crime Charged
In many prosecutions in which weapons have been used to commit charged offenses, the State seeks to introduce into evidence weapons not actually used in the crime but purportedly related either to the charged crime or to the credibility of a witness....
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Why Does Florida Have Public Defender Elections?
I. Introduction II. A Historical Overview III. The Debate over Public Defender Elections A. The Argument for Elections B. The Argument against Elections IV. Analysis A. The Florida Supreme Court's Opinion B. The Florida Bar C....
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Diminished Returns: The Exorbitance of Collecting DNA from All Arrestees
INTRODUCTION In the film Top Gun, Maverick was a trained fighter pilot who was allowed to fly incredibly powerful planes despite his inability to consider the high probability of the potentially disastrous effects of his impetuous behavior. (1)...
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Walk & Turn, Finger to Nose, One Leg Stand: Oh My! How Florida Courts Have Defined Field Sobriety Exercises
INTRODUCTION If you drink alcohol and get behind the wheel of a vehicle, you dramatically increase your chance of being in a car accident. (1) You also run the risk of being stopped by law enforcement and subjected to arrest and DUI charges. (2)...
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Vol. 26, No. 2, Winter

The Death Knell of Issue Certification and Why That Matters after Wal-Mart V. Dukes
INTRODUCTION The Supreme Court has become increasingly attuned to the reality of modern civil litigation that sees litigants spending a fortune to "try" cases that almost never go to trial.' By most accounts, well over ninety percent of civil cases...
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Trademarks, Domain Names, and ICANN: An Evolving Dance
The aim of this article is to provide insight into the various policies trademark owners can utilize to ensure protection of their domain name-related trademarks on the United States Patent and Trademark Office ("USPTO") (1) Principal Register (2)...
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Building a Better Solar Energy Framework
I. Introduction II. An Introduction to the Nature of Solar Production A. Infrastructure Requirements B. Solar Policy Framework III. Future Viability of Solar Energy IV. Analysis of Successful European Solar Frameworks V. The U.S....
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Defining a Vessel in Admiralty: "I Know It When I See It."
INTRODUCTION Defining the term "vessel," while seemingly inconsequential at first blush, is an essential preliminary inquiry in almost any maritime law dispute. In Lozman v. City of Riviera Beach, Florida. (1) the Supreme Court's latest pronouncement...
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Vol. 26, No. 1, Fall

A Holistic Approach to Planning for the Aging Same-Sex Couple: Special Considerations in Light of the U.S. V. Windsor Decision
I. INTRODUCTION On June 26, 2013, the US Supreme Court found Section 3 of the Federal Defense of Marriage Act (1) ("DOMA") unconstitutional. (2) DOMA was signed into law in 1996 by President Clinton) DOMA came into existence as fears arose that...
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Advance Health Care Directives: Problems and Solutions for the Elder Law and Estate Planning Practitioner
I. INTRODUCTION II. PRACTICAL PROBLEM #1: INTERPRETING PRECISE MEDICAL (AND LEGAL) TERMINOLOGY A. When is an Advance Directive Effective? B. Qualification of Surrogates C. Special Problem Area: Do Not Resuscitate Orders...
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Standards and Basic Principles of Examining and Evaluating Capacity in Guardianship Proceedings
I. INTRODUCTION In the realm of guardianship law, an elder law attorney is well aware that a declaration of incapacity may strip an individual of more rights than that of a convicted felon. (1) The concept of whether capacity is a matter of fact...
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Long-Term Care Insurance: A Life Raft for Baby Boomers
I. INTRODUCTION Prior to the nineteenth century, long-term care was not singled out as a service provided to either the elderly or the ill, but rather it was viewed as care that should be provided in the home. (1) This included all medical, surgical,...
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Medicaid Managed Long-Term Care: Is Florida Ready?
PART I. INTRODUCTION Medicaid is a nationwide health insurance program, created in 1965 as Title XIX of the Social Security Act (1) for the poorest and sickest individuals. The Medicaid program operates through a federal and state partnership with...
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Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System
I. Introduction II. Filial Responsibility Laws: An Antiquated System A. Background and Early Development B. Filial Responsibility Laws Displaced by Government Programs C. Example of Contemporary Filial Responsibility Statutory...
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Vol. 25, No. 3, Summer

The St. Thomas Law Review: Its Ratio Essendi
At its twenty-fifth birthday, the St. Thomas Law Review deserves a hearty round of applause for its abundant contributions to knowledge and to a public order of human dignity. Over all these years, it has stood for a vision of legal education and legal...
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A Sense of Pride
It was 1987; the year prior to the St. Thomas University School of Law receiving full accreditation approval. I can still remember the enthusiasm inspired as a young, vibrant, and hopeful law school pursued its national accreditation. As students,...
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Past and Future: The Same
During the 1987-1988 school year, Professor Siegfried Wiessner lobbied Dean Jacqueline Allee and the St. Thomas University School of Law faculty to create a law review. Professor Wiessner prevailed, and the St. Thomas Law Review served, and continues...
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The St. Thomas Law Review: Twenty-Five Years Young and Yet So Established
I am honored to be a part of the St. Thomas Law Review's 25th Anniversary celebrations. I always knew the Law Review was very important to me, but writing this piece, I realize just how it has all come full circle. I have had the unique opportunity...
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Volume 10 of the St. Thomas Law Review Issues 1, 2, and 3 (Fall 1997-Spring 1998): Building Something That Endures
Tentative efforts lead to tentative outcomes. Therefore, give yourself fully to your endeavors. Decide to construct your character through excellent actions, and determine to pay the price for a worthy goal. The trials you encounter will introduce...
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Growing Forward
The 2010-2011 St. Thomas Law Review Executive Board convened with a simple purpose in mind: What can we, as a group, do to further establish the St. Thomas Law Review as a serious academic publication, while also enhancing the Law Review's brand and...
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Rethinking Success: Justice Fred Lewis' Remarks at the 25th Anniversary Celebration of the St. Thomas Law Review
Longtime Florida Supreme Court Justice Fred Lewis, a straight shooting, folksy man who has earned enormous respect for his contributions both on and off the bench, spoke in the spring of 2013 at the St. Thomas Law Review's 25th Anniversary Celebration....
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Regression to the Mean: How Miranda Has Become a Tragicomical Farce
INTRODUCTION Fifteen years ago, when I wrote an article for a symposium issue of this journal, rhetorically entitled, Is Miranda Dead, Was It Overruled, or Is It Irrelevant?, (1) I harbored no pretensions that it would ultimately have any significant...
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Examining Committee Reports as a Basis to Dismiss Petitions to Determine Incapacity: A Question of Admissibility and Evidentiary Relevancy
INTRODUCTION "In our present day paternalistic society we must take care that in our zeal for protecting those who cannot protect themselves we do not unnecessarily deprive them of some rather precious individual rights." (1) Society continues to...
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Social Media in the Sunshine: Discovery and Ethics of Social Media - Florida's Right to Privacy Should Change the Analysis
INTRODUCTION Social media has vastly transformed society and the way people communicate. Statistics show that as many as eighty-three percent of Internet users in America between the ages of eighteen and twenty-nine use a social networking site,...
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How Consolidating the Circuits Would Have Defined the Borders of Honest Services Fraud
I. THE UNITED STATES SUPREME COURT PUNTS THE ISSUE THEN ELECTS TO RECEIVE A. NO ANSWER FROM SORICH V. UNITED STATES (1) Between 1990 and 1997, the Mayor of Chicago's Office of Intergovernmental Affairs ("IGA") ferreted out over 5,000 patronage...
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Sixth Amendment Right to Counsel: Broaden the Scope, Decriminalize, and Ensure Indigents a Fair Chance in Court and in Life
INTRODUCTION In the landmark case of Gideon v. Wainwright, (1) the United States Supreme Court stated that "[t]he right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is...
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Pre-Apprendi Sentencing: Issues Surrounding the Retroactivity of an Unconstitutional Sentence
I. INTRODUCTION For over two centuries, the United States Constitution has guaranteed Americans a right to trial by jury in criminal prosecutions. (1) In exercising this right, a jury must apply the "beyond a reasonable doubt" standard to each element...
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Vol. 25, No. 2, Spring

"Till the Detail of Surface Is in Accord with the Root in Justice": Treason, Insanity, and the Trial of Ezra Pound
I. INTRODUCTION Whether Ezra Pound was one of the best English-language poets of the twentieth century is open to debate. (2) Whether Ezra Pound was one of the most influential men of letters of the twentieth century is not. "[F]ew individuals ......
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The Growing Pains of Graham V. Florida: Deciphering Whether Lengthy Term-of-Years Sentences for Juvenile Defendants Can Equate to the Unconstitutional Sentence of Life without the Possibility of Parole
"We must reject the idea that every time a law is broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions." --Ronald Reagan On December 4, 2010, Eric...
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Powerless against Police Brutality: A Felon's Story
I. INTRODUCTION Imagine driving to the store with friends, but while en route, you are shot and beaten by the police so severely that random citizen witnesses intervene to stop the police brutality. (1) Next, envision recovering from those injuries...
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Implications of United States V. Jones on DNA Collection from Arrestees: A Trespass Prohibited by the Fourth Amendment?
I. INTRODUCTION Alonzo Jay King was arrested in Maryland on assault charges, and pursuant to state statute police collected a DNA sample from King on the day of his arrest and entered the information into a database. (1) Eventually, King was found...
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Vol. 25, No. 1, Fall

Applying Economic Loss Doctrine to Article 2 Transactions: A Doctrine at a Loss
INTRODUCTION Modem application of the judicially-created economic loss doctrine redirects some purchasers of defective goods away from actions in tort for negligence or strict liability against a product manufacturer. The Uniform Commercial Code's...
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Arbitrations in Florida: A Tale of Two Courts
The Federal Arbitration Act ("FAA") (1) "was enacted in 1925 in response to widespread judicial hostility to arbitration agreements." (2) It is evident from a number of decisions issuing out of Florida courts that this judicial hostility endures. A...
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Clarifying State Action Immunity under the Antitrust Laws: FTC V. Phoebe Putney Health System, Inc
INTRODUCTION The tension between federalism and national competition policy has come to a head. The state action doctrine finds its basis in principles of federalism, permitting states to replace free competition with alternative regulatory regimes...
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Under the Lens of the Constitution: The NDAA's Detainee Provisions and the Fifth Amendment's Guarantee of Equal Protection
Just as the heart beats in the darkness of the body, / So I, despite this cage, continue to beat with life. / Those who have no courage or honor / Consider themselves free, / I am flying on the wings of thought, / And so, even in this cage, / I know...
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What Must We Hide: The Ethics of Privacy and the Ethos of Disclosure
I. INTRODUCTION We live in an era of personal revelation. We are preoccupied by seeking, gathering, and disclosing information about others and ourselves. In the age of revelation, individuals and enterprises are fond of ferreting out what is buried...
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Vol. 24, No. 3, Summer

What You Have Said in the Dark: The Evolution of Media in the Courtroom and the New Challenges of Containing the Jury's Information Space
The trial system is in a form of crisis. (2) Recently, the United States Supreme Court effectively recognized that we no longer have a jury system. (3) Instead, we have a plea bargaining system with the remote possibility of a jury trial at the very...
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National Security Information Flow: From Source to Reporter's Privilege
REPORTER'S PRIVILEGE AND RISKS IDENTIFYING AND BALANCING POLICY INTERESTS Recent cases have returned attention to the question of whether journalists should be able to acquire and publicize classified information, and whether the reporter's source...
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Sorry Linus, I Need Your Security Blanket: How the Smartphone, Constant Connectivity with the Internet, and Social Networks Act as Catalysts for Juror Misconduct
"The jury has the right to judge both the law as well as the fact in controversy." (2) --John Jay, First Chief Justice of the United States Supreme Court INTRODUCTION Linus van Pelt was first introduced to us as one of the characters from...
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Waiting for Gaudet Charting a Course after Atlantic Sounding Co. V. Townsend
In Waiting for Godot, the masterpiece play by Nobel Laureate Samuel Beckett, two friends wait expectantly for someone named Godot to arrive. The friends claim him as an acquaintance," but in fact they hardly know him, admitting that they would not...
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Impact of the Cuban Embargo on Inheritances by Cuban Nationals
I. BACKGROUND OF THE CUBAN EMBARGO AND UPDATE BACKGROUND OF OFAC AND ITS PURPOSE "The Office of Foreign Assets Control ("OFAC") administers and enforces economic sanctions, primarily against countries and groups of individuals, such as terrorists...
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Same Violence, Same Sex, Different Standard: An Examination of Same-Sex Domestic Violence and the Use of Expert Testimony on Battered Woman's Syndrome in Same-Sex Domestic Violence Cases
I. INTRODUCTION 1971 marked the genesis of the Battered Women's Movement and, since then, remarkable strides have been made to address and combat domestic violence. (2) Today, for example, a myriad of domestic abuse agencies offer an array of services,...
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Vol. 24, No. 2, Spring

United States V. Jones: Does Katz Still Have Nine Lives?
I. The Early Evolution of the Fourth Amendment Standard A. Olmstead and Goldman 1. Olmstead v. United States 2. Goldman v. United States B. On Lee v. United States C. Silverman v. United States D. Katz Out of...
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Surveillance Technology and the Loss of Something a Lot like Privacy: An Examination of the "Mosaic Theory" and the Limits of the Fourth Amendment
Introduction: Public ... Privacy? The Fourth Amendment before Privacy The "Privacies of Life"--Boyd v. United States Trespass versus Dignity--Olmstead v. United States Public View--United States v. Lee The Tortured Life of the "Trespass Rule" The...
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Your Lethal Injection Bill: A Fight to the Death over an Expensive Yellow Jacket
ABSTRACT This article reviews in detail the history of capital punishment, and the United States' constitutional proscription of "cruel and unusual" punishment. Examined are the Magna Carta of 1215, English Bill of Rights of 1689, and various bills...
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What States Should Do to Provide a Meaningful Opportunity for Review and Release: Recognize Human Worth and Potential
Introduction The Court Considers Meaningful Opportunity The Court's Discussion in Graham The Court Continues to Recognize the Science of Adolescent Development Reward Sensitivity--Evaluating Risks Emotional...
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Florida's Disregard of Due Process Rights for Nearly a Decade: Treating Drug Possession as a Strict Liability Crime
INTRODUCTION THE HISTORY OF MENS REA AND STRICT LIABILITY CRIMES: From the Common Law to Modern American Criminal Jurisprudence The Early Beginnings of Mens Rea The Common Welfare Offense Doctrine Supreme Court Jurisprudence on Strict Liability...
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Vol. 24, No. 1, Fall

Florida's Blaine Amendment: Goldilocks and the Separate but Equal Doctrine
Origins of the Blaine Amendment Public Schools during Reconstruction Religious and Racial Bigotry Blaine Amendment Precedent The Goldilocks Test Blaine's Reenactment Federal Precedent Public Policy Conclusion Anti-Catholic prejudice that gave rise...
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Florida's Adoption of the Uniform Power of Attorney Act: Is It Sufficient to Protect Florida's Vulnerable Adults?
INTRODUCTION PART II PART III PART IV CONCLUSION Appendix A INTRODUCTION Fred was a widower who lived in Florida apart from any other family members. He had very little contact with his three children in recent years. His one son lived on the other...
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The DREAM Act and the Right to Equal Educational Opportunity: An Analysis of U.S. and International Human Rights Frameworks as They Relate to Education Rights
I. Introduction II. The DREAM ACT of 2011 1. Legislative History of DREAM Act 2. Provisions of the 2011 DREAM Act 3. States' Response to the DREAM Act A. New York and California Dream Acts B. The Beason-Hammon Alabama...
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To Secure These Rights: The Supreme Court and Snyder V. Phelps
I. Introduction II. Snyder v. Phelps: The First Amendment and Protected Speech III. Freedom of Expression and the Supreme Court IV. American Origins of Content-Neutral Jurisprudence V. Philosophical Perspectives on Free Speech VI. Conclusion ...
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Vol. 23, No. 4, Summer

Hearsay after Crawford: A Practitioner's Guide
I. INTRODUCTION II. CRAWFORD AND ITS LEGACY A. The Supreme Court's View of the Confrontation Clause B. The Supreme Court Holdings as Interpreted by Lower Courts III. EXCEPTIONS TO THE CONFRONTATION CLAUSE IV. FROM 2004 TO PRESENT: A TWO-TRACK...
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The U.S. Supreme Court Gets It Right in Arizona V. Gant: Justifications for Rules Protect Constitutional Rights
"'Ratio legis est anima legis, et mutata legis ratione, matatur et lex'- [R]eason is the soul of the law; the reason of the law being changed, the law also is changed." (1) I. INTRODUCTION II. ARIZONA V. GANT: An Overview III. JUSTIFICATION FOR...
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Racial Profiling - Separate and Unequal Keeping the Minorities in Line - the Role of Law Enforcement in America
I. INTRODUCTION II. THE HISTORY OF POLICING AND THE MODERN TREND III. DOES RACE, RELIGION, OR ETHNICITY INCREASE A PERSON'S CHANCE OF BECOMING A VICTIM OF POLICE BRUTALITY? A. Race/Ethnicity as a Factor B. Commission report...
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Fear Itself: The Impact of Allegations of Gang Affiliation on Pre-Trial Detention
I. Introduction II. The Impact of Gang Affiliation on Pre-trial Bail Determinations A. The Impact of Alleged Gang Affiliation for a Particular Defendant: Daniel's Story B. Survey Evidence of The Impact of Allegations of Gang ...
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Vol. 23, No. 3, April

I. Welcoming Remarks
Nicholas Reed: Good evening. Welcome to our symposium commemorating Bush v. Gore, ten years later. We'd like to thank you all for coming. At this time, I would like to introduce our dean, Dean Ray. Dean Ray is a prominent author and speaker in the...
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II. the View from the Litigants
This panel of the symposium was presented on November 12, 2010, at St. Thomas University School of Law in Miami Gardens, Florida. Professor Murray Greenberg: Good afternoon, everybody. Mike must be enrolled in a class I'm teaching next semester...
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III. Excerpts of Speech by Robert A. Butterworth
This speech was presented on November 12, 2010, at St. Thomas University School of Law in Miami Gardens, Florida. Michael A. Vera: And with that, I'd like to introduce our new dean, Dean Douglas Ray, who, again, as I mentioned previously, has been...
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IV. the View from the Administrators
This panel of the symposium was presented on November 13, 2010, at the St. Thomas University School of Law in Miami Gardens, Florida. Michael Vera: I guess we'll go ahead and get started. But again, for those of you who were here last night, I'm...
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V. the View from the Bench
This panel of the symposium was presented on November 13, 2010, at the St. Thomas University School of Law in Miami Gardens, Florida. Michael Vera: All fight, welcome back. Now we move to one of the most exciting parts for me, anyway, getting to...
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VI. the View from Academia
This panel of the symposium was presented on November 13, 2010, at the St. Thomas University School of Law in Miami Gardens, Florida. Michael Vera: Welcome and thank you all for coming to lunch, and I'm very excited for this next and last and greatest...
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A Very Streamlined Introduction to Bush V. Gore
I. Background II. The Florida Supreme Court Decision III. Bush v. Gore IV. Five Myths about Bush v. Gore A. The Republican/Conservative Conspiracy Theory B. The Federalism Theory C. The Departure from Precedent Theory ...
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Vote-Dilution Analysis in Bush V. Gore
"I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this--who will count the votes, and how. "--Joseph Stalin (1) I. How the Vote-Dilution Claim Arose A. A Vote-Dilution Claim...
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Vol. 23, No. 2, Spring

Rethinking the Cuban Adjustment Act and the U.S. National Interest
I. Introduction II. Fidel Castro's Rise to Power and Cuba's Tension with the United States III. The Passage of, and Justification for the Cuban Adjustment Act A. Cuban Immigration Prior to the Passage of the CAA: 1959-1966 B. The...
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Darkness at Noon: Judicial Interpretation May Have Made Things Worse for Benefit Plan Participants under ERISA Than Had the Statute Never Been Enacted
I. OVERVIEW II. ERISA III. JUDICIAL RESTRICTION OF PARTICIPANT RIGHTS A. Preemption B. Deferential Review of Plan Administrators' Decisions C. Limitations on Remedies and Causes of Action 1. Exhaustion of Administrative...
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Principled Legal Pragmatism: Reconciling Posner and Dewey on Law and Democracy
Pragmatism helps us see that the dream of using theory to guide and constrain political, including juridical, action is just that--a dream. If political action is to be constrained, it must be by psychological, career, and institutional factors rather...
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"With Liberty and Justice for All (Families)": The Modern American Same-Sex Family
I. Introduction II. Assisted Reproductive Technology and Its Effect on Same-Sex Parentage III. Uniform Parentage Act: Narrow vs. Enlightened Application Among The States IV. The Fundamental Right of a Natural Parent: A History of Flexibility ...
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Vol. 23, No. 1, Fall

Legal Fictions and Juristic Truth
I. Introduction II. The Legal Fiction A. Common Law Legal Fictions B. Statutory Legal Fictions III. New Legal Fictions? A. Empirical Legal Errors B. Discredited Legal Regimes C. Statutory Schemes IV. Conclusion ...
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Poison Pens, Intimidating Icons, and Worrisome Websites: Off-Campus Student Speech That Challenges Both Campus Safety and First Amendment Jurisprudence
I. Introduction II. Tinker & Its Progeny: First Amendment School Speech Overview III. Threatening Expression: The School Environment is no Place for this Type of Speech IV. Off-Campus Speech, On-Campus Harm A. Why Schools are Best Situated...
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The United States and the U.N. Human Rights Council: An Early Assessment
I. Introduction II. The United States' Vote Against Establishment of the Council III. The United States' Views on the Council's Activities IV. United States Objections to the Council's Work A. Country-specific Debates B. Thematic Debates ...
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Facilitating Stakeholder-Interest Maximization: Accommodating Beneficial Corporations in the Model Business Corporation Act
I. Introduction II. Beneficial Corporations A. General Structure B. Why Current Corporate Law Is Insufficient to Guarantee Stakeholder-Interest Maximization 1. Articles of Incorporation a. Takeovers As a Threat...
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What Are the Policy Implications of Use of Epidemiological Evidence in Mass Torts and Public Health Litigation?
I. Introduction A. Problems With Mass Torts Litigation II. Recent Cases Where Epidemiological Evidence Was Debated A. Vaccine Related Cases B. Non-Vaccine Related Cases III. General v. Specific Causation IV. Tensions Raised by...
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Vol. 22, No. 3, Spring

Know the Mission: A Lawyer's Duty to a Nonprofit Entity during an Internal Investigation
I. INTRODUCTION A. SCOPE AND DEFINITIONS B. PREVIEW OF SECTIONS II. INTERNAL INVESTIGATIONS GENERALLY AND ADDITIONAL NONPROFIT CONSIDERATIONS A. DECIDING TO OPEN AN INTERNAL INVESTIGATION B. CONSIDERING INDEPENDENT OUTSIDE...
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The Battle Lines of Federal Rule of Civil Procedure 8(a)(2) and the Effects on a Pro Se Litigant's Ability to Survive a Motion to Dismiss
I. Introduction II. The Development of the Pro Se Frenzy III. The Development of Federal Rule of Civil Procedure 8(a)(2) A. Conley v. Gibson & Bell Atlantic v. Twombly B. Erickson v. Pardus C. Ashcroft v. Iqbal IV. The relationship...
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Blasphemy in Pre-Criminal Code Canada: Two Sketches
I. INTRODUCTION II. BLASPHEMY IN NEW FRANCE A. CONTEXT B. CASES C. ANALYSIS III. BLASPHEMY IN EARLY NINETEENTH-CENTURY RURAL ONTARIO A. CONTEXT B. CASES C. ANALYSIS IV. CONCLUSION I. INTRODUCTION Few people...
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Executive Activism Not Reciprocated with Judicial Activism: Wyeth V. Levine and Cuomo V. Clearing House Return Preemption to the Legislative Branch
I. Introduction II. The Theory of Preemption: A Doctrine Rooted in the Legislative Branch of Government A. The Assignment of Governmental Power B. The Parameters of the Supremacy Clause C. Preemption as it Applies...
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Making Effective Use of Practitioners' Briefs in the Law School Curriculum
I. Introduction II. The Pedagogy Supporting the Use of Practitioners' Briefs to Teach Persuasive Writing III. The Process of Using Practitioners' Briefs to Teach Persuasive Writing IV. Going Beyond the Legal Writing Classroom: Using Practitioners' ...
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A Horse of a Different Color: A Study of Color Bias, Anti-Trust, and Restraint of Trade Violations in the Equine Industry
I. INTRODUCTION II. THE TEXAS BUSINESS & COMMERCE CODE, ANTI-TRUST AND RESTRAINT OF TRADE LAWS IN THE UNITED STATES A. Fiduciary Duty 1. Texas' Treatment of the Business Judgment Rule B. Restraint of Trade ...
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On-Line Legal Research Workshops
ABSTRACT Like riding a bicycle, playing tennis, or driving a car, legal research is a skill, and like any other skill, it is learned by doing, and not by listening to a lecture. However, lectures are indispensable for introducing the skill. The...
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Vol. 22, No. 2, Winter

The Florida Minimum Wage Act: Thoughts on the Impending Notice Debate
I. INTRODUCTION Although litigation has yet to erupt in this arena, the 2005 Minimum Wage Amendment to the Florida Constitution (2) laid the groundwork for what may soon become a hotbed of litigation. (3) Specifically, the Minimum Wage Amendment...
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The Complications of Fla. Stat. (Section) 222.25(4). Does Florida's Wildcard Exemption Allow Married Debtors to Double Dip?
I. INTRODUCTION When debtors file for bankruptcy, their assets become property of the estate under the Bankruptcy Code. (2) Exemptions provide debtors with the legal fight to shield certain property from creditors. (3) Several policy reasons justify...
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The State of ERISA after 35 Years: Complex, Yet Arguably Simplistic, Which Federal Statute May Be Unraveled with a Touch of Supreme Common Sense
I. Introduction II. Generally, ERISA Pre-empts All State Laws That Relate to Employee Benefit Plans III. While Broad in its Reach and Scope, ERISA's Pre-emption Clause Is Not Unlimited IV. ERISA and the High Court's Own ERISA Pre-emption...
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Take Two of These and Sue Me in the Morning: Efficacy of the Learned Intermediary Doctrine in Prescription Drug Failure to Warn Cases
I. Introduction II. The Learned Intermediary Doctrine: The Doctrine Explored III. The Learned Intermediary Doctrine: Policy Explored IV. The Learned Intermediary Doctrine: Exceptions to the Rule V. The Role of Warnings in Tort Law Generally ...
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What's Love Got to Do with It? Contemporary Lessons on Lawyerly Advocacy from the Preacher Martin Luther King, Jr
ABSTRACT Lawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important...
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Vol. 22, No. 1, Fall

Foreword: Criminal Law Issue
It is my pleasure to write the foreword to this inaugural criminal law issue. The issue consists of four timely and incisive articles that underscore the importance of the procedural and fair trial guarantees embodied, respectively, in the Fourth and...
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Death Is Different: The Need for Jury Unanimity in Death Penalty Cases
I. Introduction II. Unlike All Other States, Florida Allows a Simple Majority of the Jury to Find the Prosecution Proved an Aggravating Circumstance III. Capital Sentencing Schemes Across the Nation Require Jury Unanimity Before a Defendant...
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Big Bill Haywood's Revenge: The Original Intent of the Exclusionary Rule
I. Introduction A. Hudson v. Michigan B. Herring v. United States II. The World Before Weeks A. As to Defendants B. As to Evidence III. Weeks IV. In the Wake of Weeks: The Original Understanding of Original Intent A....
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Blakely, Apprendi, Booker, Begay, and Santos: Judicial Minimalism and the U.S. Supreme Court's Ill-Conceived Attempts at a Rational Jurisprudence
I. Introduction A. Yolanda Blakely and Her Son, Ralphy II. Judicial Minimalism and Its Incorrect Application A. Booker and the Supreme Court's Attempted Fix B. Larry Begay and His Twelve Previous D.U.I. Convictions ...
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The Banality of Excessive Defender Workload: Managing the Systemic Obstruction of Justice
I. Introduction II. The Importance of Defender Excessive Workload and Its Societal Context A. Excessive Caseload as a Reflection of Broader Societal, Systematic Failure and Complicity B. The Criminal Justice System C. Consequences...
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