This Article asserts that the Florida Board of Bar Examiners violates the Americans with Disabilities Act (ADA) by focusing its mental health inquiry solely on the disability status of applicants in Question 25 of the Florida Bar Application. It asks, “Within the past 5 years, have you been treated for, or experienced a recurrence of, schizophrenia or any other psychotic disorder, a bipolar disorder, or major depressive disorder, that has impaired or could impair your ability to practice law?” If an applicant answers this affirmatively, that imposes an automatic subsequent request for information and potential investigation regardless of the extent to which such a disorder has resulted in problematic conduct. Accordingly, Question 25 is overly broad, is unrelated to protecting the public and safeguarding the judicial system, and thus discriminates against applicants with particular mental disorders by subjecting them to additional burdens solely because of their disability status. This Article offers a simple solution: use a set of conduct-focused mental health disclosure questions that is authorized by the Department of Justice as ADA compliant.
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The United States Department of Housing and Urban Development’s (HUD) homeless definition excludes most of those living in doubled-up situations. Living doubled-up means the person or family is living in another’s home. This Article argues that HUD’s interpretation of the HEARTH Act’s definition of homeless is incorrect based on legislative history and modern understandings of homelessness. The federal response to homelessness has historically evolved in response to crises. In the 1980s and late 2000s, the country faced national economic and housing crises, prompting the government to address national homelessness. While the understanding of homelessness in the 1980s was driven by healthcare disparities, the 2009 housing crisis forced the federal response to evolve to address homelessness as the complex economic and social issue it is. In light of this evolution in federal understandings of homelessness and the similarities between the doubled-up and those in shelters, this Article argues that HUD wrongfully excludes most of the doubled-up and should therefore amend its definition to include them.
Restorative justice has become an increasingly popular topic in the national conversation. No longer just a niche legal concept, restorative justice has gained traction in a variety of contexts. Importantly, restorative justice has emerged as a model that could remedy some of the problems associated with the traditional criminal justice model in the United States: one of the world’s highest incarceration rates, family disruption and loss of civil rights due to brushes with the law, and a culture that is often motivated by fear and bias to put people behind bars.
In a Comment I wrote as a law student, which Stetson Law Review published in 2018, I explored restorative justice and other alternative models that different countries have used to administer justice following mass atrocities, when prosecuting in international tribunals was not feasible. The international legal system could not withstand the high volume of cases that needed to be prosecuted after the Rwandan genocide, Apartheid, and other horrific events, so these countries turned to alternative models to bring justice and build peace in their communities.
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What do appellate judges cite? Lawyers have hunches, but this study, which tallies more than 13,000 citations from three different appellate courts (including the U.S. Supreme Court), transforms those hunches into concrete data—with some twists and curiosities along the way. Unlike previous studies that focused on just one type of authority, this study considers it all. The results reveal courts’ citation preferences for binding precedent (including the age of cited cases), persuasive precedent, codified law, secondary sources (including a topical breakdown of law-review articles), and nontraditional sources such as books and websites. Some of the statistics challenge assumptions. Readers will see, for example, textualist jurists ignoring dictionaries and citing legislative history. And the results are sprinkled with oddities, from an operatic libretto to a 16th-century Elizabethan statute. The Article concludes with a statistical snapshot of the typical U.S. Supreme Court opinion (majority and dissent) and the typical state court-of-appeals opinion.
The Executive Branch is resurgent. Recently, the Supreme Court held in Lucia v. Sec. & Exch. Comm’n that Administrative Law Judges (“ALJs”) in the SEC are inferior officers under the Appointments Clause of the Constitution. In doing so, the Court has called into question the removal protections of thousands of inferior officers in the Executive Branch. Veterans Law Judges (“VLJs”), administrative decision-makers within the Department of Veterans Affairs, are likely inferior officers and share the same statutory removal protection as ALJs. History illustrates the perils of greater executive oversight over administrative decision-makers, perils manifesting again today. Amidst calls to “burn down the administrative state,” Lucia and related case law threaten the decisional independence of VLJs and the integrity of a beleaguered veterans benefits appeals system. Accordingly, Congress should vest the powers to appoint and remove VLJs in the “Courts of Law.” Doing so would cure the constitutional defect in their current protection from removal while insulating them from extrajudicial influences. Specifically, Congress should place VLJs under the supervision of the United States Court of Appeals for Veterans Claims (CAVC) and, in turn, place CAVC under the supervision of an Article III court. CAVC is in the best position to supervise VLJs, and placing CAVC under Article III supervision would remove VLJs from the executive chain of command. Not without its own challenges, this hybrid model of supervision is the ideal solution to the dilemma posed by Lucia.
Claims for reproductive negligence typically fall under two rubrics. Claims by the wrongfully birthed child are almost never countenanced, while claims by the wronged parent generally are. Nevertheless, in these wrongful birth claims, usually recovery is strictly limited. While damages for rearing a child with congenital ailments may be allowed, those for raising healthy child are not. The bases for denying healthy child care are couched in policy grounds and derive from an anathema of abortion, a view of the sanctity of life and an outmoded judicial ipse dixit that child-rearing is one of life’s greatest gifts for which damages will not lie, even if such result shields a clearly negligent defendant. Here, I first point out that current vogue restricting abortion may have an adverse impact on efforts seeking to reverse this approach. I further argue that whatever gifts accrue to healthy child-rearing also may apply to non-healthy children, and the health or disability of the child should not be relevant to the outcome of these claims. And, finally, I propose a novel approach: broadening the damage ambit by noting that the birth of the child is not the only harm accruing to the parents. A court’s focus on only the birthed child and parents’ bliss in raising her ignores the impact of the negligence on the family unit as a whole, and on the parents as individuals and denies the individual plaintiffs their rights of autonomy, liberty and the pursuit of happiness.
Sexual indiscretions, misconduct, and deceits percolate throughout the extensive 2019 Report on The Investigation into Russian Interference in the 2016 Presidential Election —known as the Mueller Report. While Trump’s sexual behaviors are certainly not the focus of the Mueller Report, the report desexualized Trump’s conduct to such an extent that it obscured important matters meriting further exploration. This Article, Sexing the Mueller Report, aims to highlight and expand on the sexual issues raised by the report and contends that the sexual circumstances are not merely titillating distractions, but present important contexts regarding cooperation with foreign powers and obstruction of justice. This Article first discusses the Access Hollywood tape, on which Trump is heard discussing his sexual misconduct toward women, and which the Mueller Report considered briefly related to coordination with foreign actors during the campaign. The Article next discusses the allegations of a Moscow sex tape, which the Mueller Report considered in relation to obstruction of justice, but which might be relevant more broadly. Centrally, this Article examines Trump’s alleged consensual sexual relationships with two women, Karen McDougal and Stormy Daniels, and explores how Trump’s personal attorney, Michael Cohen, came to plead guilty to campaign finance violations involving the payments to both women. Finally, this Article situates the sexual matters raised in the Mueller Report in the possibility of impeachment proceedings, arguing that they are not as peripheral as presently presumed and should be considered as a matter of impeachment.
Facebook’s proposed cryptocurrency, Libra, and its payment system, Novi, pose antitrust challenges and opportunities. By stepping into the financial arena, Facebook raises questions about whether antitrust scrutiny is available at all to review this expansion, and whether the right legal tools exist to protect competition in digital markets. An analysis of Facebook’s position in social media and online advertising reveals the economic value of data, how Libra and Novi can contribute to further market concentration, and how antitrust law has a unique opportunity to demonstrate that it is able to reconcile innovation with competition.
The Fourth Amendment of the U.S. Constitution guarantees the right to be free from unreasonable searches and seizures. Most citizens sleep soundly knowing that no government actor can intrude into the most intimate areas of their lives without due process of law. However, what most citizens do not know is that the same protections they count on are diminished, and arguably non-existent in certain cases, at the borders of the U.S. This Article first explores constitutional limitations at the border as they relate to the search and seizure of travelers’ cell phones or other electronic devices—arguably a doorway to most citizens’ most private and intimate communications. Specifically, this Article addresses the well – settled exception to the Fourth Amendment’s protections: warrants are not required for searches of electronics at the border, even when the electronics are seized and subject to off-site forensic searches. Although federal agencies have provided guidelines instructing border patrol agents on the parameters of searches at the border, this Article argues that short of requiring a warrant to search electronics at the border, no such guidelines sufficiently protect the rights of travelers. Finally, this Article urges the Supreme Court and Congress to act immediately to prevent these gross intrusions into the private lives of travelers, preventing further violation of individual rights.
This Article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded to include moral culpability. This Article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate. criminal liability through the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that the Department of Justice’s voluntary implementation of a new corporate criminal liability standard is enough, this Article discusses two fundamental flaws with this position. First, while federal prosecutors’ consideration of the Principles of Prosecution may be “mandatory,” these guidelines create no legal rights for corporate defendants. Second, the Principles of Prosecution contain elements for consideration that are outside the appropriate scope of inquiry because they examine the corporation’s actions after the criminal conduct under scrutiny. Thus, this Article proposes a revised common law respondeat superior test that includes a legally binding moral culpability element that focuses on a refined and appropriately limited group of pre-offense and offense-specific factors: the nature and seriousness of the offense; the pervasiveness of wrongdoing within the corporation; the corporation’s history of similar conduct; and the existence and adequacy of the corporation’s preexisting compliance program.