SLR’s Online Journal

Mental Health Parity: More Important than Ever Post-COVID

As we celebrated our second anniversary, my wife Caroline, suffered her first panic attack. Caroline spent the next week praying and speaking to every loved one in her life, but she could not find any reprieve from her anxiety; she felt helpless when her anxiety spiraled out of control. With nowhere else to turn, Caroline confided in our pastor, who recommended that she see a mental health counselor. The counselor discovered some root causes of Caroline’s anxiety, uncovered by the COVID-19 pandemic, but ultimately found that Caroline was suffering from biological depression and would need to go see a psychiatrist—more time and money. This was a tough pill to swallow for Caroline, who was already overwhelmed (and having spent hundreds of dollars on treatment). As she soon learned, psychiatry is a process of trial and error, so she would spend the next ten months trying various medications that did not work; all of this was expensive and largely not covered by insurance.

Nearly a year later, Caroline has finally found a promising medication, but the whole experience has taught her that the past year would have been much easier if she received preventative mental health treatment before her anxiety and depression spiraled out of control.

When the Sum of the Parts are More than the Whole: How Fully Secured Creditors Can Be Preferred in Bankruptcy

The bankruptcy system seeks to provide debtors with relief from overwhelming debt, while ensuring a fair and equitable distribution to creditors. Though the filing of a bankruptcy petition stays most debt collection efforts and repayment outside of the bankruptcy system, payments made prior to the bankruptcy filing may diminish funds available to distribute to creditors during the bankruptcy case. In order to prevent pre-petition transfers from impacting post-petition distribution within the bankruptcy system, the Bankruptcy Code provides the bankruptcy trustee with the power to avoid various pre-petition transfers and to recover those transfers from the recipient. With regard to one of those potential transfers—preferential transfers—courts regularly find that transfers to fully secured creditors cannot be avoided. However, this conventional wisdom fails to consider how other sections of the Code that allow such creditors to recover additional payments in bankruptcy causes a benefit to those creditors at the expense of others. This article seeks to resolve the lack of congruity between these sections to protect the purposes behind recovery of preferential pre-petition transfers.

Judicial Selection in a Hyper-Politicized Democracy

I am grateful to the Stetson Law Review for providing me this opportunity to comment on Judge Mark Klingensmith’s recent, thought-provoking article on judicial selection practices in Florida. Judicial selection is always an important issue, but in these highly politicized times concepts like judicial independence, political accountability, and public confidence in our governmental institutions are particularly salient. My comments are not meant as a critique of Judge Klingensmith’s article, but rather what I would describe as thoughts about the next steps in his analysis. 

The article focuses, among other things, on the apparent discrepancy in outcome between two votes: 1) Florida voters’ choice in 1998 to amend the state constitution to allow counties to choose whether to elect or appoint local judges, and 2) a round of votes in 2000 in which individual counties exercised their choice voted for two years earlier to endorse judicial elections. The article goes to great lengths to discuss the various factors relevant to, and potential explanations for why, the 1998 and 2000 votes came out the way they did, and I have neither inclination nor space to take issue with any of that discussion. I would, however, offer a slightly different perspective on the debate over judicial selection in Florida that took place at the turn of the last century, and suggest that this perspective has relevance for the current manifestation of that debate.

On Measuring Damages Where a Contract Breach Benefits the Promisee: Response to Mark Giancaspro, Quantifying Damages in Cases of Advantageous Breach: The Curious Case of McDonald’s Milkshakes

As someone who has regularly taught both contracts and remedies for the past decade and a half, I read with great interest Dr. Giancaspro’s article, Quantifying Damages in Cases of Advantageous Breach: The Curious Case of McDonald’s Milkshakes. I would strongly recommend this article to anyone interested in exploring one of the more fascinating issues that arises at the intersection of these two subject areas: that of ascertaining the damages for a party who “suffers” (if one can call it that) an “advantageous breach” of contract. This issue has long held a particular fascination for me because, on the one hand, if one focuses on the contractual duty owed to the promisee, it seems that she has, in fact, clearly suffered a wrong when the promisor breached his promise to her. On the other hand, of course, the promisee turns out to have profited quite nicely from this “wrong,” making any “damages” due her problematic under the traditional principles of compensation embraced by American contract law. As both a lecturer (at the Law School at the University of Adelaide) and a practicing attorney, Dr. Giancaspro has written an article that deftly explores this area by way of an entertaining case study involving the McDonald brothers and Ray Kroc. His article should prove valuable to academicians, judges, practitioners, and anyone else seeking “guidance as to the remedial consequences that may flow from advantageous breaches.”

Should the Florida Courts Adopt the Federal Twombly Standard For Motions to Dismiss?

For half a century, plaintiffs in federal court facing motions to dismiss dutifully cited the familiar Conley v. Gibson mantra that the motion must be denied unless it appears beyond doubt that the “plaintiff can prove no set of facts in support of [the] claim.” The Supreme Court’s 2007 Twombly decision and its 2009 companion case, Iqbal, changed that, adopting for federal courts a “plausibility” standard for evaluating the sufficiency of complaints on motions to dismiss.  

Although Florida Rule of Civil Procedure 1.110 is based on and contains very similar language to Federal Rule of Civil Procedure 8, Florida courts, at least formally, still adhere to the Conley standard. But just as the Florida Supreme Court has abandoned the Frye test for determining whether expert evidence is admissible in favor of the federal Daubert standard, and is considering adopting the federal Celotex standard for determining whether summary judgment is appropriate, perhaps now is the time for the Florida courts to also adopt the Twombly standard for motions to dismiss. As this article will explain, the Florida courts should formally recognize Twombly’s plausibility test as the motion to dismiss standard because the text of rule 1.110 requires it and many Florida courts are applying the functional equivalent of it. 

Please click below to read the full Article.

Exploring Non-prosecutorial Justice Alternatives in America

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.

Please click below to read the full Response.

Live Critique of Oral Arguments: Response to Amanda L. Sholtis, Say What?: A How-To Guide on Providing Formative Assessment to Law Students Through Live Critique

Live critique is a process through which a teacher reviews a student’s work for the first time “live” with the student and provides feedback. Stetson Law Review recently published Say What?: A How-To Guide on Providing Formative Assessment to Law Students Through Live Critique by Professor Amanda L. Sholtis, which focuses on the use of live critique to give feedback to students on written law school assignments, such as memorandums of law or exam answers. This response will offer some reflections on Professor Sholtis’ article and also will discuss how providing feedback to students immediately after they present oral arguments is another useful example of the live-critique method in legal education.

Please click below to read the full Response.

Pulling Back the Curtain on the Great and Powerful Oz*: SCOTUS and Title VII

As a law student, the Stetson Law Review published my first law review article. As a licensed attorney reviewing that article, I have some responses to the topic of my Comment, Title VII employment discrimination based on sex, especially since oral arguments were recently heard at the Supreme Court of the United States (SCOTUS) with three separate but overlapping cases.

First, this Response discusses the legal arguments made by the LGB plaintiffs in the cases against the legal arguments I presented in my previous article. Then, the Response reviews the oral argument heard at SCOTUS for the LGB plaintiffs and provides responses to some points made by the Justices. Finally, this Response examines the future, by discussing not only the possible outcomes from the SCOTUS case but also how that decision can impact already viable legal theories LGB plaintiffs use in employment discrimination cases.

Please click below to read the full Response.