Legislatures are the bedrock of our government; yet legislators and the legislative process itself are commonly viewed with distrust, and even revulsion, by a disquietingly large number of Americans. Public cynicism has increased as legislatures have limited the application of ethics, conflict-of-interest, and financial disclosure laws to themselves. The almost daily reports of individual legislator misconduct confirm in the public mind that there is reason for concern. The result is the problem of legislative misbehavior, which consists of actual or perceived self-serving legislative conduct, coupled with legislative action that keeps legislative behavior invisible to public scrutiny.

Any lawyer who practices in the § 19831 area will confirm that the procedural and substantive complexities of litigating under the statute have become huge. In cases involving claims against sheriffs, the confusion has been compounded by the ramifications of the United States Supreme Court’s decision in McMillian v. Monroe County. For § 1983 purposes, McMillian treats the status of sheriffs as a question of federal law, informed by state law, with classification of the sheriff as a state or local policymaker dependent, in part, upon the particular function performed by the sheriff in that case. If a sheriff is determined to be making policy for the state when engaged in the challenged conduct, the plaintiff cannot sue the sheriff in his official capacity, as that would be tantamount to a suit against the state, forbidden by both the Eleventh Amendment and the Supreme Court’s construction of § 1983.8 A county, subject to suit for constitutional violations caused by its own policymakers, will bear no liability for conduct attributed to a sheriff who is a state policymaker. While a suit against a state policymaker may proceed against the official in his individual capacity, plaintiffs are often precluded from recovering damages by the official’s assertion of the qualified-immunity defense.

A seventeen-year-old girl attended a party with her new boyfriend. Everyone at the party drank alcohol, but she did not. Although the girl said that she was not ready for sex, she engaged in a three-way sexual encounter at the party with her boyfriend and his friend, John. During the encounter, John left the room and the girl and her boyfriend had sexual intercourse. When it was over, her boyfriend left the room and John returned. Wordlessly, John and the girl began having sex. The girl, having second thoughts, rolled on top of John and told him she had to go home. He rolled himself on top of her and responded, “Just give me a minute.” The girl replied, “No. I have to go home.” About one minute later, John stopped the intercourse.

Did John rape the girl, or did she engage in consensual sex? In 2003, the California Supreme Court held that John’s actions constituted a forcible rape. That holding resolved a jurisdictional split and solidified the legal possibility of post-penetration rape as a convictable offense under California’s rape statute. The holding proved controversial, and reactions of approval and disapproval resonated throughout the legal community, media, and general public.4 Reasons for the controversy varied, but two main issues arose: whether courts should recognize post-penetration rape as an offense that is convictable under a rape or sexual assault statute, and if so, based on the facts of In re John Z., whether John actually committed a rape.

With the increased frequency of mergers and acquisitions in the 1980s, Congress became concerned about abusively large payments made to executives when a corporation was acquired. In response to this perceived abuse, Congress enacted a pair of tax statutes designed to reduce or eliminate these payments. Sections 280G and 4999 of the Internal Revenue Code, both entitled “Golden parachute payments,” are punitive tax provisions designed to discourage corporations from making, and executives from receiving, abusively large payments when a corporation is acquired.

In Department of Transportation v. Armadillo Partners, Inc. (Armadillo II), the Florida Supreme Court held that evidence of costs to cure in eminent domain actions, while admissible to establish just compensation, should not be a component of a property owner’s compensation and are not damages but should be considered merely in evaluating the effect of the taking on the remainder property’s market value. In doing so, the Court found that costs to cure are admissible only if tied to the cure’s effect on the remainder’s fair market value. In focusing on the proof offered by the condemnor’s appraisal expert in the case, the Court also held that an expert’s challenged method of evaluation “should ordinarily be treated as an issue of weight, not admissibility.” The Court’s holding applies even when the expert’s opinion contravenes the law of severance damages, which provides that full compensation for a taking should include both ‘“the value of the portion being appropriated and any damage to the remainder caused by the taking.’”

In deciding Armadillo II, the Court rejected years of precedent that addressed the effect of proposed cures on areas outside of the area taken. More important, because Armadillo II concerns expert testimony in general, the decision may encourage experts to ignore established law because doing so affects only the weight, as opposed to the admissibility, of their testimony. By rejecting the long-standing and broadly applicable rule that permits trial courts to exclude expert testimony when it contravenes established law, Armadillo II may mislead juries and lead to erroneous and inequitable jury verdicts.