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Rebecca C. Morgan and Michael P. Allen, Introduction and Commentary: Reflections on and Implications of Schiavo, 35 Stetson L. Rev. 1 (2005)Clicking on the button will copy the full recommended citation.
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Susan D. Rozelle, Controlling Passion: Adultery and the Provocation Defense, 37 Rutgers Law Journal 197 (2005)Clicking on the button will copy the full recommended citation.
Adulterous wives, especially those caught in the act, are classically provoking. Conventional wisdom explains that the ordinary, reasonable, otherwise law-abiding person cannot be expected to control himself when faced with an actively faithless spouse - or at least, control becomes so hard to maintain that a defendant who kills under those circumstances may be partially excused. But the conventional wisdom is wrong: most people can control themselves under such circumstances. Instead, provocation is properly grounded in justification, and should be permitted only to those defendants who were legally entitled to use some amount of force when they killed.
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Peter Lake, Private Law Continues to Come to Campus: Rights and Responsibilities Revisited, 31 J.C. & U.L. 621 (2005)Clicking on the button will copy the full recommended citation.
This article provides an update to the 1999 book, Rights and Responsibilities of the Modern University: Who Assumes the Risk of College Life, co-authored by Stetson law professors Robert D. Bickel and Peter Lake.
The article discusses cases decided since 1999 that deal with central issues of legal duty. The major focus of Rights and Responsibilities was describing the evolution of the law of legal duty in higher education. It has become apparent that the most significant cases in this regard are those involving student alcohol use. Rights and Responsibilities was not a book devoted to college alcohol issues, as such. Yet, it is increasingly apparent that the battleground over competing visions of the modern university is the high-risk alcohol culture and its epidemic primary and secondary effects. Litigation over injuries fueled by alcohol drive college and university safety law today. Many of the recent alcohol cases involve Greek organizations. Courts continue to hold Greek organizations responsible for foreseeable danger to members and others. There are also some significant cases that do not involve alcohol and are relevant to issues of duty and reasonable care in higher education law. Importantly, as No-duty arguments begin to fail in court, it is increasingly necessary for college and university lawyers to turn to other arguments such as causation and plaintiff fault to manage the litigation boom.
Part II discusses some future trends. First, the article briefly discusses the continuing rise of risk management cultures at colleges and universities in recent times. Rights and Responsibilities did not cause the rise in risk management cultures; yet, there is a profound inter-relationship between the book and the continued development and refinement of the concept of college risk management. The modern college or university now attends to foreseeable risks as a matter of good business, not just for litigation avoidance.
Part II also discusses the need for further development of the facilitator model as set out in Rights and Responsibilities. With the benefit of hindsight, it is clearer than ever that Rights and Responsibilities and the facilitator model require further development in at least two areas. One area concerns student process systems. Today, safety is intimately connected to the efficacy of student process systems. These systems are failing and need attention. Additionally, Rights and Responsibilities and its facilitator model were deeply animated by active risks posed to students by the students' own behavior, the behavior of other students, and non-students; and to a lesser extent, passive risks created by conditions on or near campus. Although Rights and Responsibilities did attend to some wellness issues, it did not focus upon the ever-growing range of student wellness issues including student suicide, depression, anxiety, cutting, etc. We are now on the leading edge of a new generational set of student concerns. There will be a rise in concern for - and thus ultimately litigation over - issues related to student wellness. The future of the facilitator model depends on attending to these new risks.
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Theresa J. Pulley Radwan, No Harm, No Foul: Calculation of Nondischargeable Damages in Transactions Tainted by Fraud, 58 SMU L. Rev. 1385 (2005)Clicking on the button will copy the full recommended citation.
Section 523(a)(2)(B) of the United States Bankruptcy Code provides that a debt incurred as a result of written fraud cannot be discharged by a bankruptcy proceeding. Though section 523(a)(2)(B) provides elements of this nondischargeable fraud, one common element of fraud is conspicuously missing from this list-damages incurred as a result of the fraud. Whether damages must be shown in order to prevent discharge of a written fraud debt has been debated by courts under both the Bankruptcy Act and Code. However, despite numerous revisions to the bankruptcy laws, the need (or lack thereof) for damages remains unclear. In this article, the author suggests that preventing a discharge on the basis of fraud without requiring damages causes a windfall to the "defrauded" creditor. The author also suggests a mechanism for calculating such damages to ensure an equitable balance between the debtor and creditor in a bankruptcy proceeding, utilizing a tort-based calculation of damages.
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Louis J. Virelli, Don’t Ask, Don’t Tell, Don’t Work: The Discriminatory Effect of Veterans’ Preferences on Homosexuals, 38 John Marshall Law Review 1083 (2005)Clicking on the button will copy the full recommended citation.
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James W. Fox, Doctrinal Myths and the Management of Cognitive Dissonance: Race, Law, and the Supreme Court’s Doctrinal Support of Jim Crow, 34 Stetson L. Rev. 293 (2005)Clicking on the button will copy the full recommended citation.
This article, published in 2005 as part of a symposium on Brown v. Board of Education, addresses the contradiction between long-professed and deeply-held equality and liberty principles and a devastating history of racism manifest itself in the Supreme Court’s doctrinal support for Jim Crow segregation. I argue that the Supreme Court managed this dissonance between the legal ideal of equality and the actual practice of racial subordination through the implementation of doctrinal myths, myths which enabled white legal actors and society to retain a formal belief in equality. Through the doctrinal myths of state action, federalism, separate-but-equal, and reasonable segregation, the Court was able to facilitate the white South’s re-establishment of legalized white supremacy, which contravened the basic principles of Reconstruction and the Reconstruction Amendments to the Constitution, and yet at the same time argue that it was all along implementing and preserving the equality ideals of those very Amendments. I also consider how, by studying this period of doctrinal myth-creation, we can perhaps more fully analyze current doctrines affecting racial and legal equality, and, in particular, how appeals to the doctrinal rhetoric of equal citizenship may or may not result in actual movement towards that principle even in the face of societal racial subordination.
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Royal C. Gardner and Theresa J. Pulley Radwan, What Happens When a Wetland Mitigation Bank Goes Bankrupt, 35 Envtl. L. Reporter 10590 (2005)Clicking on the button will copy the full recommended citation.
The article addresses how bankruptcy law can affect the rights and obligations of mitigation bankers and government agencies. The article further examines two ongoing bankruptcy actions involving mitigation banks and offers suggestions for adoption by regulatory agencies to protect against the consequences of mitigation banks going bankrupt.
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Royal C. Gardner and Darby Dickerson, Advancing Environmental Education through Moot Court, 1 International Journal of Environmental Consumerism 63 (2005)Clicking on the button will copy the full recommended citation.
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Royal C. Gardner, The Role of Wetland Mitigation and Conservation Banking in Sustainable Development: The United States Experience, 1 Forum of Public Policy 47 (2005)Clicking on the button will copy the full recommended citation.
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D. Benjamin Barros, At Last, Some Clarity: The Potential Long-Term Impact of Lingle v. Chevron and the Separation of Takings and Substantive Due Process, 69 Alb. L. Rev. 343 (2005)Clicking on the button will copy the full recommended citation.
This short essay discusses the Supreme Court's recent decision in Lingle v. Chevron and its potential long-term impact on the Court's regulatory takings doctrine. Lingle involved a narrow (though important) issue of takings law, and on the surface it appears to be a relatively modest case. A deeper look, however, reveals that in its separation of substantive due process and regulatory takings, Lingle has tremendous potential to clarify regulatory takings doctrine. If this potential is fulfilled, Lingle is likely to be far more significant in the long term than Kelo v. City of New London, which has dominated the commentary about the Court's recent takings decisions. Lingle may also have the counter-intuitive effect of helping property-rights advocates (who were the putative losers in the case) by undercutting the precedential value of cases that help the government in takings battles.