By Kylie Riordan*

This Article explores the complexities surrounding the disposition of non-financial, sentimental digital assets, specifically email accounts, social media accounts, and electronic data stored across devices and cloud platforms. As personal information and communications are predominantly stored in digital form today, leading technology companies have begun offering online tools, most recently Apple’s Legacy Contact, that allow users to designate individuals who can access their digital assets upon their death. This Article analyzes the Florida Fiduciary Access to Digital Assets Act (the “Florida Act”) and identifies foreseeable challenges facing users, personal representatives, legacy contacts, lawyers, and the courts. This Article first proposes an amendment to the Florida Act stipulating that a user’s valid estate planning documents override any conflicting online tool designation. This Article proposes another amendment to the Florida Act that limits custodians’ discretion to require a court order when disclosing non-content digital assets of the user to fiduciaries, most importantly personal representatives. Lastly, this Article offers guidance to estate planning attorneys on implementing preventative measures and addressing essential considerations to ensure that the client’s testamentary wishes are accurately and efficiently fulfilled. 

By Jason Slade Brown*

Consisting of fifteen Spring Training facilities, several minor league franchises, and two Major League Baseball (“MLB”) teams, Florida is a hotbed for professional baseball. With the recent media attention on foul ball injuries, MLB’s recommendation that protective netting be extended to the foul poles, and Florida’s tort reform, this Article analyzes Florida’s relationship with professional baseball and urges the codification of the “Baseball Rule.” Under a century of common law precedent, the baseball rule serves as a full defense to litigation so long as the stadium owner provides protective netting across the most dangerous sections of the stadium and fans who desire protected seats have a choice in sitting in those sections. Florida, unlike other states with significant professional baseball footprints, has never addressed the baseball rule either by statute or through case law. As a result, this Article urges the Florida legislature to act proactively, by aligning Florida with several other states, in adopting the baseball rule as a full bar to litigation. Relying on several other state codifications of the baseball rule, this Article presents the Florida legislature with a statutory framework that balances stadium owners’ liability with fans’ desires to watch baseball games unobstructed. 

By Jesse Dieterle*

Governor DeSantis and the Florida legislature have consistently pursued a policy of implementing conservative social legislation in the State of Florida. Recently, the Parental Rights in Education Bill (“HB 1557”) was enacted, causing the Walt Disney Company to publicly oppose the legislation. This public reaction, and expression of speech, led Governor DeSantis and the Florida legislature to act in a manner that arguably violated the United States and Florida Constitutions. Less than a month after Disney publicly criticized HB 1557, Governor DeSantis signed legislation prospectively dissolving the Reedy Creek Improvement District. The special district provided quasi-municipal authority over land owned and managed by Disney. The prospective dissolution of Reedy Creek raises constitutional issues under the First Amendment, Section 4, Article I of the Florida Constitution, and the Contracts Clauses of the United States and Florida Constitutions. This Article discusses the relevant history of Reedy Creek, the heated interactions between Governor DeSantis and Disney, and considers what legal remedies Disney may be able to pursue. This Article advises that Disney file constitutional claims against the State of Florida, and that Governor DeSantis and the Florida legislature seriously consider fully reinstating the Reedy Creek Improvement District. The enactment of SB 4-C, which would have prospectively dissolved the Reedy Creek Improvement District, is a stark example of governmental overreach to control private corporations in Florida and chill the expression of dissent against state policy. 

By Derek D. Perry*

 Conflict exists between archaic common law and modern practical realities as to whether rights of way may be bartered and sold by local governments. Rights of way are held in trust by local governments on behalf of the public. Common law provides dated and conflicting direction for local governments seeking to protect public interests when vacating rights of way at the private sector’s request. Right of way vacations can spur redevelopment, benefit public safety, and increase property values. However, closing rights of way may cause traffic problems, flooding, and other unforeseen consequences. This Article seeks to first serve as a primer in right of way vacations for local government and land use practitioners. Second, this Article offers a historical perspective on right of way vacations and platting in Florida, contrasted against ever evolving socio-political expectations for local governments. Finally, this Article addresses the modern realities in vacating rights of way and highlights how the existing statutes and common law fall short—and provides legislative and judicial suggestions for resolving these shortcomings. 

By R. Allyce Bailey, Esq.*

The construction and administration of governmental entities is complex. Our local municipalities, counties, and state agencies are made up of innumerous departments that work together to keep the communities in which we all live operating as efficiently as possible. Efficiency is achieved working successfully at the service of the people, yet efficiency is not always flawless. Because the administration of governmental entities’ duties is often not carried out without fail, they are subject to tort litigation. But what standard should the law hold governmental entities to? The same, a lesser, or a higher standard of liability as any other potential tortfeasor? That question led to the Public Duty Rule’s conception. In order to ensure governmental entities can successfully be held liable for breaches, legislators developed the Rule to hold governmental entities to the same standard of liability as any other potential tortfeasor. Under the Public Duty Rule, claimants are required to prove the damage was a result of government entities’ breach of a special duty. This special duty must be specific to both the claimant and the claimant’s harm rather than the public at large. Proper application of the novel construction of the Public Duty Rule can be perplexing for governmental entities seeking to invoke it and claimants seeking to overcome a Public Duty Rule assertion by a governmental entity. This Article will serve as a primer on the Public Duty Rule for both governmental entities and claimants facing a Public Duty Rule defense. 

By Audra Locicero*

The United States’s federal public lands are the treasure of the American landscape. Encompassing some of the most grandiose, wild, and sacred lands in the country, our Nation’s federal public lands are cherished by many for their natural beauty and cultural significance. They are also the ancestral homelands of America’s Indigenous Peoples. Through centuries of war, treaty-breaking, and forced removal, Native American ancestral homelands were taken from Native American peoples, becoming the property of the United States Government and later the Nation’s federal public lands. The majesty of our collective public lands is thus tainted with injustice. 

Action on the part of the United States Government to address the harms wrought by Native land dispossession is long overdue. Tribal co-management of federal public lands, an emerging land management strategy in which the United States Government and tribal nations joint-manage parcels of federal public lands, offers a potential route for reconciliation. By exploring the dual histories of Native land dispossession and the federal public land system, and the current legal authority for tribal co-management, this Article provides a call to action to the federal government to prioritize tribal co-management of its millions of acres of federal public lands—the need is pressing, the legal authority exists, and successful tribal co-management agreements are currently in place. The time for tribal co-management is now. 

By Hilleary Barbara Gramling*

With the ruling in Dobbs v. Jackson Women’s Health Organization, overturning both Roe v. Wade and Planned Parenthood v. Casey, the United States Supreme Court revoked the constitutional right to abortion and discarded nearly fifty years of precedent. Since the decision, fourteen states completely ban abortions and, in total, nearly half of the United States restricts abortions. Such restrictions limit accessibility to not only abortion-related care, but also reproductive healthcare in general. The Dobbs decision has cascading consequences in a world where almost everyone is “online,” and nearly every app on any given device collects accessible, minable data that can illuminate an individual’s choices, habits, and even their thoughts. The Dobbs holding incited an unexpected and dangerous reality—one where device data takes on another dimension of value, evolving into evidence procured by law enforcement to prosecute individuals for seeking abortions—and sometimes even to prosecute individuals who experienced stillbirths and miscarriages. Focusing specifically on privacy concerns under the U.S. Constitution in criminal prosecutions, by drawing a parallel between device data and the cell site location information analyzed in Carpenter v. United States, this Article urges that obtaining device data from location services, period-tracking apps, and search engines without a warrant is a violation of the Fourth Amendment’s prohibition on illegal searches and seizures. To navigate this complex and evolving area of law, this Article delineates avenues and approaches advocates must take to protect individuals adversely impacted by the Dobbs decision. 

By Matthew R. Lyon*

 Using Elon Musk as a case study, this Article provides a profile of the “superstar CEO.” Silicon Valley tends to swoon over corporate leaders, particularly founders, who are charismatic, confident, and sound more like they are leading a movement than a company. In recent years, “founder-friendly” venture capitalists have allowed entrepreneurs to keep their leadership positions as the company matures, and governance structures have been put in place to protect founders and surround them with friendly directors and officers. This can become a problem for shareholders if the high-profile CEO, through misfeasance or malfeasance, becomes more damaging than beneficial to the corporation. After presenting a character profile of the “superstar CEO,” the Article will analyze the board’s role in overseeing the CEO, and how that becomes more challenging structurally if good corporate governance practices are not established early in the corporation’s lifecycle. It then turns to whether courts, through the shareholder derivative action, or regulators, through SEC oversight, can be a sufficient backstop to protect shareholders when boards fail to act. Throughout, the Article reflects on the enigmatic Elon Musk and his relationship with Tesla shareholders as an illustration of both the benefits and downsides of the CEO as superstar. 

By   Joan MacLeod Heminway *

What would it be like to represent Elon Musk on business law matters or work with him in representing a business he manages or controls? This Article approaches that issue as a function of professional responsibility and practice norms applied in the context of publicly available information about Elon Musk and his business-related escapades. Specifically, the Article provides a sketch of Elon Musk and considers that depiction through a professional conduct lens, commenting on the challenges of representing or working with someone with attributes and behaviors substantially like those recognized in Elon Musk. 

Ultimately (and perhaps unsurprisingly, for those who have followed Elon Musk’s interactions with the law in a business setting), the Article concludes that representing Elon Musk or one of his controlled businesses would be a tough professional assignment, raising both typical and atypical professional responsibility issues. Taking on an engagement in which Elon Musk is the client or a control person would require deliberate lawyer leadership, including (among other things) patience, mental toughness, and empathy. As a result, the lawyer would be required not only to have the required legal expertise, sensitivity to professional conduct regulation, and practical experience to carry out the representation, but also to understand and know how to employ their talent, personality, and character strengths and leadership style in a demanding and mutable lawyering context. 

By  Carliss Chatman & Carla L. Reyes*

In 2022, Elon Musk publicly announced that he would purchase Twitter after acquiring a five percent stake in the company. His failure to report this acquisition—and the company’s failure to notice—allowed Musk to continue purchasing stock at a deflated price, costing the company more than $156 million. After the signing of a merger agreement, the details of the transaction caused wild fluctuations in Tesla’s stock price. Musk’s complaints about the management of Twitter and the existence of bots on the platform led Twitter’s stock to also drop in value, as did Musk’s attempts to withdraw from the transaction. Even after the deal closed, many commentators noted their concern that the shareholders of two corporations saw the value of their investments impacted by the whims of one billionaire. But is that the whole story? 
At some point in the Musk-Twitter saga, Musk claimed that the number of bots on the Twitter platform devalued the company sufficiently that he should be let out of the transaction altogether. At the time, most observers did not take Musk’s complaints about bots seriously. But what if, instead of just being a silly excuse, Musk’s complaints about bots on Twitter were a tell? What if, they were a hint about a deeper business strategy with a potential to impact capital markets in as yet unanticipated ways? This Article examines the connections between Musk’s many business ventures and argues that Musk’s emphasis on bots on Twitter points toward the one, nearly stealth connecting factor in his businesses: data collection and monetization. By uncovering Musk’s data empire, the Article also reveals key data blind spots in the federal laws meant to govern capital markets and argues that state law offers a better avenue for reigning in the negative externalities of data-driven mergers—mergers and acquisitions undertaken primarily to gain access to the data and data exhaust produced by the target company.