Page 10 of 11

Legal systems continue to become intertwined as economic globalization expands and previously unknown concepts and doctrines are incorporated into particular legal systems. As laws are adapted to accommodate the global economy, many legal systems have become mixed jurisdictions, where remedies for breach of contract include both common and civil law remedies. For delivering nonconforming goods in a contract, the common law provides remedies such as damages and rescission, while the civil law provides for price reduction.

This Article compares the three traditional remedies (damages, rescission, and price reduction) available to an aggrieved party for breach of contractual duty of conformance. When making the comparison between these three remedies, this Article compares the adjusted values and market values at the time of the contract, at the time of the breach, and at the time of the remedy based on the assumption that a rational aggrieved party will select the remedy with superior monetary benefits. The Article includes a table describing in what situations each remedy would be most preferred. Comparing the remedies, the Article suggests that remedies rooted in common law are most often preferable, or as good as, the civil law remedy of price reduction because harmed parties will generally prefer common law remedies.

Women located in rural, lower-income areas of the country, such as the Heartland Region, have limited access to physicians due to their location and economic status. In response to this, Planned Parenthood of the Heartland implemented a telemedicine-abortion procedure to aid in the prescribing and dispensing of mifepristone, the abortion pill, thus improving access to early-term abortions for women in rural areas. Numerous states, in the quest to illegalize abortion, have expressly or effectively outlawed telemedicine abortions. 

The Author argues that abortion-specific restrictions on telemedicine violate the Fourteenth Amendment because they fail the undue burden test set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Author first argues that no reasonably related legitimate state interest lies behind the laws; telemedicine is used as a means of merely prescribing mifepristone, an FDA-approved drug for early-term pregnancies only, and maternal safety is not at issue. The Author then argues that women who rely on telemedicine abortions, such as those in rural, lowereconomic regions, are targeted by the legislation because they live great distances from abortion-services providers and are unable to afford the costs of traveling to the distant providers. As such, the Author argues that telemedicine-abortion restrictions completely ban an effective means of providing a safe, federally approved method of abortion for rural, lower-income women, creating a substantial obstacle to their right to choose abortion.

Identifying and treating mentally ill individuals who may become violent is an issue many states struggle to address. This Article discusses the states’ attempts to implement involuntarily assisted outpatient treatment laws that provide these individuals with both the medication and treatment they need and remove them from a situation where the individuals may act violently toward others. These laws allow a treating doctor, among others, to petition the court to require outpatient treatment as a requirement for these individuals’ release into the general public. Florida instituted such a law in 2004; however, it has only been used seventy-one times since its introduction because of multiple flaws, including a lack of funding.

To assist Florida’s outpatient treatment laws, this Article proposes using Florida’s homeless ordinances to identify at-risk individuals and provide medical services that the individuals need. While jails and prisons are not ideal treatment facilities, they have become the country’s de facto mental health institutions. This Article evaluates the links between mental illness and violence and the part that the Florida law plays within the mental health arena, and then it discusses how to revitalize Florida’s current outpatient treatment law. Finally, this Article concludes that the current outpatient treatment law is simply not working, and by using the ideas suggested, including the homeless ordinances already in place, Florida can provide a cost-effective method of fixing the problem.

Genetic testing is a rapidly expanding field, leading to advancements in medicine and a further understanding of heredity. But genetic testing and the resulting advances in medicine and technology have a dark side-misappropriation and commercial exploitation of individuals’ genetic information without permission or compensation. Current Florida law falls short of providing the protections necessary to deter misuse of genetic information, potentially impeding progress in genetic study.

This Article examines the history and importance of genetic-information protection, describing such abuses as forced sterilization, racial and employment discrimination based on unauthorized genetic testing, and commercial exploitation without the genetic-information donor’s knowledge or permission. This Article then details how Florida’s current statutory protections, even paired with the protections of the federally mandated Genetic Information Nondiscrimination Act of 2008, are not enough to protect the rights of potential genetic-information contributors. Finally, drawing on Florida’s right-of-publicity statute and the common law principle of license coupled with an interest, this Article proposes an amended Florida genetic-information statute that would create a property right in one’s own genetic information and provide the civil penalties and causes of action needed to create effective genetic-information protection.

For states, sales tax plays a crucial role in acquiring revenue. The development of e-commerce has led to states losing a potentially substantial amount of sales-tax revenue because Internet retailers (e-tailers), which often lack physical presence in states, are not required to collect sales tax for online sales. While consumers and e-tailers benefit from current tax laws and are content with them, state governments and brick-and-mortar retailers desire tax law reform, which could potentially provide increased state sales-tax revenue and also level the playing field for retailers who are subject to state sales taxes. This Article begins with a brief description of sales and use taxes, and follows with a discussion of significant Supreme Court cases, including National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota, which required that retailers have a nexus with a state before they were subject to state taxation. Although these cases considered state sales tax as it applied to mail-order retailers, they provide the current framework for Internet sales-tax law by analogy. The Article then discusses the Internet Tax Freedom Act (ITFA), the Streamlined Use Tax Agreement (SSUTA), and other federal and state approaches to Internet sales taxation. State approaches include using e-tailers’ in-state marketing affiliates to establish physical presence in the state and collecting the taxes from consumers based on required sales reporting by e-tailers. The Article also considers the constitutional concerns (Due Process, Commerce Clause, Dormant Commerce Clause, and state constitutions) and the practical problems (including forcing states to all adopt the same rules and regulations) that both individual state approaches and the SSUTA face.

The Author argues that a blend of the state approaches and the SSUTA provides a solution to the problems associated with Internet sales taxation. Starting at the federal level, Congress should require retailers that have an economic presence in a state to collect state sales taxes. Such a standard, though previously rejected by the Supreme Court in Quill, would provide a constitutional regulation of interstate commerce by Congress and would thus avoid the constitutional problems raised by other approaches. Additionally, the two thresholds of the economic-presence test would incorporate portions of both the SSUTA and state methods, and would ensure that smaller retailers are not burdened by collecting state sales tax, while still allowing states to collect revenue from larger retailers’ Internet sales. Thus, the Author’s combined approach to Internet taxation is more likely to garner support from a majority of states and also from Congress, while simultaneously avoiding the constitutional and practical problems associated with other suggested approaches.

This Article provides an in-depth analysis of the nationwide problem of using restraint and seclusion on children in schools, as well as the ineffectiveness of current state laws regarding the use of these techniques. The Article argues that federal standards are necessary to protect children against the widespread use of these techniques.

The Author discusses the inconsistent state laws, with nineteen states having no laws or standards on restraint and seclusion, only eight prohibiting the most dangerous type of restraint, and the rest having various forms of restrictions. Insufficient training received by teachers and staff members and the lack of documentation of these incidents exacerbate the issues with the techniques. Additionally, the current legal remedies available for children who have suffered from these techniques are inadequate because they are reactive, are very fact-intensive, and do not offer a way to prevent the same conduct in the future.

There are insurmountable barriers for parents to cross in attempting to bring suit under either of the two common options, an Individuals with Disabilities Act violation or a violation of the child’s constitutional rights. The Individuals with Disabilities Act requires that a parent must exhaust the administrative process before bringing suit, and constitutional litigation involves a very high standard where it is difficult, if not impossible for parents to prove that the conduct reaches the level of a constitutional violation. The Author argues that the only way to solve this problem is for Congress to create minimum standards that regulate the use of these techniques, require training in safe restraint and alternative solutions, and include documentation and enforcement regulations.