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Kristen David Adams, Understanding Philosophical Movements Law Review Editors May Encounter, in The Scribes Manual for Law Review Editors (Darby Dickerson and Brooke J. Bowman eds., Carolina Academic Press, 2022)Clicking on the button will copy the full recommended citation.
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Kristen David Adams and Candace Zierdt, CISG, 77 Bus. Law. 1345 (2022)Clicking on the button will copy the full recommended citation.
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Paul Boudreaux, No More January Sixths: A Constitutional Proposal to Take Politics Out of Presidential Election Mechanics, 24 U. Pa. J. Const. L. 1029 (2022)Clicking on the button will copy the full recommended citation.
The conduct of Congress on January 6, 2021, exposed the ill-considered legal mechanics of the presidential electoral vote. In both 2017 and 2021, members of Congress “objected” to the Electoral College vote, threatening democracy. Guided by principles of neutrality and humility, this essay identifies potentially partisan vulnerabilities in the current electoral system and proposes three straightforward constitutional amendments. First, the Constitution should remove the ability of state legislatures to choose electors. Second, the Constitution should require expeditious state resolution of popular voting disputes. Third, and finally, the Constitution should remove Congress entirely from presidential electoral mechanics.
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Brooke J. Bowman, The Editorial Adventure, in The Scribes Manual for Law Review Editors (Darby Dickerson and Brooke J. Bowman eds., 2022)Clicking on the button will copy the full recommended citation.
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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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Darryl Wilson, Keeping Current-Property, 36 Probate and Property 10 (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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Darryl Wilson, Keeping Current-Property, 36 Probate and Property 17 (2022)Clicking on the button will copy the full recommended citation.