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Anne E. Mullins, Book review, Transitioning from Practical Legal Writing to Academic Scholarship, review of Elizabeth Berenguer’s The Legal Scholar’s Guidebook, 19 Legal Comm. & Rhetoric: JAWLD 217 (2022)Clicking on the button will copy the full recommended citation.
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Anthony Palermo and Daniel L. Buchholz, Post-Tiara: Contracts Are Still King, 95 Florida Bar Journal 18 (2022)Clicking on the button will copy the full recommended citation.
This article analyzes a Florida Supreme Court case, as well as the precedent leading up to it and subsequent decisions, which raised important questions about the independent tort doctrine and economic loss rule in contract disputes. Although similar, these two principles are not identical, and they are often confused by litigants and courts alike. That confusion led in part to debate surrounding the contours and even survival of the independent tort doctrine following the Florida Supreme Court's decision in Tiara Condominium Association, Inc. v. Marsh and McLennan Companies, Inc., which limited the application of the economic loss rule. This article asserts, however, that the decision actually confirms the independent tort doctrine's continued application in Florida and further argues that that the doctrine rests on sound principles of efficiency and equity and should be endorsed and applied by Florida courts. The article also provides an overview of the distinction between the independent tort doctrine and economic loss rule, analyzes the court's decision and relevant precedent, and explains why the independent tort doctrine should remain a vital component of Florida contract law.
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Will Bunting, How the Law Can Leverage Behavioral Economics to Better Protect Small Business Owners Against Location Risk in the Brick-and-Mortar Retail Sector, 59 American Business Law Journal 393 (2022)Clicking on the button will copy the full recommended citation.
This Article examines how the law can help reduce retail vacancy rates in volatile urban real estate markets. Two potential drivers of high vacancy rates along retail corridors in otherwise healthy real estate markets are identified: (1) location risk, and (2) positive feedback effects. This Article suggests that local governments can pursue a nudge-based approach to encourage landlords and retail tenants, especially small business owners, to adopt percentage rent or some other form of profit-sharing to more efficiently allocate location risk. To address positive feedback effects in which each storefront vacancy increases the likelihood of an additional storefront vacancy, a case is made for slightly stronger government intervention. Current legislative responses to the problem of retail vacancy are also considered, including vacant property taxes, commercial rent control, and zoning reclassification, and the advantages and disadvantages of each are examined.
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Ciara Torres-Spelliscy, The Political Branding of the Big Lie (Symposium, The Government’s Speech and the Constitution), 2022 U. Ill. L. Rev. 1711 (2022)Clicking on the button will copy the full recommended citation.
This piece will argue that the Roberts Supreme Court’s protection of lying and its choice to fence government speech as outside of First Amendment analysis have created a perfect storm for a figure like President Trump to do incredible damage to voting rights specifically and trust in American democracy more generally.
In my 2019 book, Political Brands, I explored how commercial branding techniques are being used in politics to sell American voters, politicians, ideas and ideals. Branding includes the targeted repetition of messages until they are accepted as true by an audience, even if the message is a lie, a myth or fantasy.
In the months before the 2020 election, experts predicted that because of COVID-19 pandemic, millions more voters than normal would vote by mail. These experts put out a white paper entitled “Fair Elections During a Crisis” encouraging states to process mail-in votes as early as possible so that there would not be a delay in processing overall votes total. The white paper predicted what is now known as either the Blue Shift or the Red Mirage—that if Re-publicans voted in person and Democrats voted by mail, that Re-publicans would appear to “win” on election day, but that once all ballots were processed it was possible for Democrats to actual win.
This Blue Shift/Red Mirage indeed happened in the 2020 general election for president. At 2:00 a.m. after the election, President Trump prematurely declared victory. Key swing states like Nevada, Georgia and Pennsylvania took days after the election to process all of their votes. It was on Saturday November 7, 2020 when Biden’s victory became clear. President Trump then spent every day since the 2020 election claiming that there was massive voter fraud, voting machines cannot be trusted, and Republicans legislators should appoint pro-Trump electors. His campaign filed multiple lawsuits attempting to get states to throw out certain votes and in a particularly bold suit, his campaign attempted to get all votes from Pennsylvania to be thrown out. The courts did not indulge him or his campaign.
Trump’s failure to concede by itself likely would not cause last-ing damage to the American political process. But the nonstop rhetoric during the 28 days (and counting) that his supporters should “stop the steal” of the election, while questioning whether the integrity of the 2020 election had been profoundly undermined by voter fraud or failed voting machines, Trump’s rhetoric has the potential to undermine voting rights and trust in American democracy. The longer-term damage that could be that Trump’s fantasy problems will be used as justifications for voter suppression laws which make voting by mail more restrictive.
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David A. Stroud et al., Development of the Text of the Ramsar Convention: 1965–1971, 73 Marine and Freshwater Research 1107 (2022)Clicking on the button will copy the full recommended citation.
The ‘Ramsar’ Convention on Wetlands was the first of the modern era global biodiversity conventions and remains the only multilateral environmental agreement focused on a single group of ecosystem types. At the time of initial discussions within the wetland conservation science community in the late 1960s, its ambition was unprecedented, with no successful models to draw upon, especially with regard to novel concepts such as the modus for an ‘internationally protected site’. Drawing on previously unpublished draft texts, we track the Convention’s textual development to its ultimate agreement in 1971. During this period its geographic scope changed from an initial European to global focus, whereas core obligations related to the designation of internationally important wetlands and the provision of secretariat coordination functions were substantively developed.
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Louis J. Virelli, Partial Recusal and the Supreme Court, Mich. St. L. Rev.: MSLR Forum (2022)Clicking on the button will copy the full recommended citation.
This essay uses the framework of the affirmative action litigation to introduce and preliminarily explore the concept of “partial recusal” at the Court. Part I briefly introduces judicial recusal, including the unique features of recusal at the Supreme Court. Part II addresses the idea of partial recusal, which has been generally undertheorized and effectively overlooked with respect to the justices’ recusal practices. It then distinguishes between two types of partial recusal—horizontal and vertical—and makes a case for why each could be useful for the Court.
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Roy Balleste, The Ethics of Space Exploration: Harrowing Stories of Death, Survival, and the Unknown, 37 Conn. J. Int'l L. 138 (2022)Clicking on the button will copy the full recommended citation.
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Roy Balleste, The Law of Space Cyber Operations: Gripping Mysteries, Entangled Frontiers, and Security Challenges, 13 Case Western Journal of Law, Technology & The Internet 146 (2022)Clicking on the button will copy the full recommended citation.
The developments of technologies applicable to cyberspace and outer space offer new opportunities. Each nation, institution, and individual must be involved in the security of cyberspace in order to secure outer space activities, while reinforcing the legitimacy of that commercial process. The stories that follow consider the intersection of outer space law and cybersecurity, describing vulnerabilities and the limitations of implementing international norms. The article assesses the cyberthreat landscape while offering recommendations. The article's subsequent sections are organized as follows: Part II, The Cruel Sky, considers a historical mystery to better understand the contradictory world of cyber operations. Along the way in looks at humanity and its role to play. Part III, the Human Condition, takes a closer look at activities on and near Earth. In particular, it assesses a potential computer fraud originating from outer space. Part IV, Reach for the Stars, treks in search of recommendations for the safety and future of space exploration.
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Stacey-Rae Simcox et al., Review of Veterans Law Decisions of the Federal Circuit, 2021 Edition, 71 Am. U. L. Rev. 1619 (2022)Clicking on the button will copy the full recommended citation.
In the past year, the United States Court of Appeals for the Federal Circuit (Federal Circuit) continued to define boundaries for the Department of Veterans Affairs (VA) and the U.S. Court of Appeals for Veterans Claims (Veterans Court). These boundaries align more closely with congressional intent, especially with regard to the jurisdiction of the Veterans Court and the internal operations of the agency.
This Area Summary discusses eight major areas in which the Federal Circuit articulated important changes in veterans law. First, the Federal Circuit revisited the important and veteran-friendly 'benefit of the doubt' rule in Lynch and modified it. In Lynch, the Court analyzed the term 'approximate balance' and instructed VA to liberally consider evidence and apply the benefit of the doubt rule even where the evidence is not in exact equipoise. Second, the Federal Circuit limited the Veterans Court’s power to fact-find and narrowed its power to find prejudicial error in Tadlock. Third, in Anania, the Court strengthened the 'mailbox' rule by finding that the claimant’s, or advocate’s, own affidavit sufficiently proved proper mailing. Fourth, the Court broadened the constructive possession rules relating to VA-contracted medical reports in Euzebio. Fifth, the Federal Circuit looked to principles of equity in Arellano and Taylor to determine whether tolling or estoppel may be invoked when the question relates to the effective date for the grant of VA benefits. Sixth, the Court clarified effective date rules in Kisor, George, Ortiz, and Buffington. Seventh, in Military-Veterans Advocacy, the Federal Circuit overturned three regulations promulgated under the new Appeals Modernization Act, each related to supplemental claims—a new avenue for veterans seeking to reopen earlier decisions. Finally, in Smith, the Court continued to weigh in on attorney’s fees, an important issue for veterans and their advocates.
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Luz Estella Nagle et al., Russian Oligarchs Using Colombian Bank Accounts to Avoid Sanctions, 38 Int'l Enforcement L. Reporter 145 (2022)Clicking on the button will copy the full recommended citation.