This Article analyzes government-run websites as public fora under the auspices of the First Amendment with consideration given to the legal implications involved in maintaining and operating a government website. The Author describes the different kinds of fora and lists the varying levels of scrutiny that a court must apply to each when government regulation of speech or expression is involved. The Author places the various types of government-run websites into separate categories with a focus on the websites’ purposes. Further, the Author suggests which type of forum is applicable to each website category, providing guidance as to whether members of the public have a First Amendment right to participate in a given government-run website. Finally, the Author describes the limitations that may be placed on speech and expression based on the type of forum utilized by a government body in operating or maintaining a website.
Category: Volume 44 Page 2 of 3
The ideal of an informed citizenry necessitated the creation of public records laws, including the Freedom of Information Act. But at the state level, the “Government in the Sunshine” laws are being misused, especially in the Sunshine State. Academics have warned of the problem, and increasingly, public servants wrestle with overzealous citizens who are pushing the public records laws to the point of logical absurdity, One Florida town spent $20,000 on legal fees because it gave a citizen a bill for a $1.20 in photocopies; another town litigated over a public records request that it fulfilled, allegedly because a two-day response was not fast enough. The reality of the laws, as implemented, is that people have rights without any responsibility.
Careful reforms are needed, and this Article shows that some of the problems can be solved. To begin with, the executive branch of government must take compliance with the public records laws seriously, committing itself to the principles of public access while also engaging in greater self-policing. Open government does not require every person to be a policeman nor should it allow a self—appointed watchdog to become a vigilante. In addition, the judicial branch should avoid instinctive declarations that the public records laws provide “virtually unfettered” rights. Instead, the courts should carefully assess the facts and the letter of the law Courts must recognize that clever citizens playing “gotcha” with the government will bury the agency with burdensome requests, evade their duty to pay for the costs of asking for public records, sue for every type of error—no matter how petty—and then demand attorney’s fees as a reward for manufacturing the problem. The legislature should also make statutory changes, mirroring already existing statutes. Citizens should be required to give the government notice of intent to sue and an opportunity to fix the problem before they rush to court. In addition, the incentive to rush to court should be decreased by exposing abusive lawsuits to the possibility of paying the government’s attorney’s fees. Lastly, the legal profession can contribute to the solution by adhering to the applicable standards of legal ethics and professionalism, and even by holding pro se plaintiffs accountable.
The excesses of government in the sunshine have sunburned the government. As a result, the public servants, acting rationally in an effort to reduce the burdens and economic risks of the public records laws, are incentivized not to document their decisions at all. The result is a less transparent government that costs even more. Rather than allowing the abuses, costs, and ironic consequences to continue, this Article offers some sunscreen.
Local governments in Florida have diverse decision-making capacties—executive, legislative, and quasi-judicial. The Florida Constitution provides litigants the right to appeal quasi-judicial decisions of local governments to a circuit court; however, executive and legislative decisions are immune from appeal.
This Article examines a lower court’s constraints on reviewing quasi-judicial decisions. The Author analyzes the reasons that quasijudicial decisions are subject to appeal, as opposed to legislative and executive decisions that are outside a court’s scope of review, Further, the Author examines the constraints of judicial review at three stages of the appellate process—before the appeal, during the review, and after the appeal. First, the Author explains why, before the appeal, a court may only review a quasi-judicial decision from a proceeding that
requires notice and a full evidentiary hearing. Then, the Author identifies why, during the review, a court must follow a standard that accords deference to reasonable agency decisions. Finally, the Author explains why, after the appeal, a court has a limited ability to direct a local government’s tribunal. This Article, therefore, provides a comprehensive understanding of the limitations of appealing local government decisions.
The economic loss rule was introduced as a means of preventing the application of tort remedies to contract matters, and it developed into a method of ensuring the enforcement of contractual provisions. The purpose of the economic loss rule—first applied in the products liability context and eventually extended to the broad contractual-privity context—has been to prohibit tort claims from being brought where no personal injury or product damage has occurred and the only loss suffered is monetary. Florida courts traditionally applied the contractual privity economic loss rule this way until the Florida Supreme Court’s decision in Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., where it rejected the contractual-privity economic loss rule and therefore limited the application of the economic loss rule to the products liability context.
The author asserts that the future of economic disputes in Florida is unclear because Florida courts have yet to clearly interpret the Tiara decision through subsequent caselaw to establish a bright-line rule. This uncertainty, the Author explains, extends to the products liability context. Now that the contractual-privity economic loss rule has been rejected, Florida courts have not clarified which claims are barred by the economic loss rule and which claims qualify as exceptions to the rule as it is applied following Tiara. The Author takes the position that the Florida Supreme Court’s current interpretation of the economic loss rule, which allows a plaintiff to bring a claim in tort by establishing a duty arising out of the contract but without showing a breach of the duty separate from the contract, conflicts with common law principles and creates ambiguity.
While it still remains unclear as to whether a contractual provision can give rise to a duty in tort for the sole purpose of recovering economic losses, Florida caselaw following Tiara appears to make this suggestion. If this is eventually developed into a bright-line rule, plaintiffs could use tort claims to circumvent certain contractual provisions, which could potentially lead to unlimited liability.
This Article examines in depth the statutory framework of Florida Statute Section 768.16, often referred to by its common name: Florida’s Wrongful Death Act. Specifically, this Article looks to the damages provisions of the Act in an attempt to determine whether Florida’s current system of recovery meets the widely accepted constitutional criteria created through historical jurisprudence. Part I provides a chilling example that lays the foundation for the analysis of exactly how unjust Florida’s current recovery scheme may be for a decedent and his or her survivors. Part 11 provides a look into what a wrongful death act seeks to achieve through a brief historical and constitutional context of tort liability for wrongful death. The relationship between the federal and state statutory framework is outlined, as well as the procedural nature of bringing a wrongful death claim. Part 111 then turns specifically to the Florida Act, detailing its constitutional purpose and construction, subsequent 1972 amendment, and legislative merging of the traditional “swivel” and “wrongful death” causes of action into one avenue of recovery. Specific focus is given to the damages provisions of both the old and new Act, and the practical limitations that such arrangement has placed on plaintiff recovery. The analysis then attempts to parse out those damages recoverable by the decedent’s estate and damages recoverable by eligible survivors, all the while noting the absence of two categories of recoverable damages: (1) pain and suffering of the decedent, himself, and (2) hedonic dam-
ages. Part IV delves into the theoretical motives behind plaintiff recovery via United States Code Section 1983 and the dual policies underlying the cause of action as accepted in today’s caselaw. The concepts of “compensation” and “deterrence” are then applied to Florida’s scheme to determine whether the state framework is inconsistent with the overarching federal policies. Both fictional and actual case hypotheticals are discussed, which lay the backdrop for inpointing inconsistent recoveries, inequitable recoveries, and in one scenario an overall lack of recovery for worthy plaintiffs. Finally, Part V offers some conclusions and recommendations for reworking Florida’s statutory framework to make wrongful death litigation more predictable and fair for potential plaintiffs all the while balancing the interests of the litigants, the demand on the court system, and the economic effects on the public as a whole. The Author proposes specific amended language and offers comparisons to other states’ schemes suggesting ways to better protect potential wrongful death plaintiffs and to help ensure that the means of our constitutional right to recovery are duly met.
The Supreme Court’s inability to establish a clear analytical path concerning personal jurisdiction in the stream-of-commerce context has confused lower courts and potential plaintiffs alike, The Court needs to adopt a clear stream—of—commerce analysis that is both
consistent with its prior decisions and reflective of the realities of the modern commercial world.
In today’s global economy, a manufacturer’s specific intentional contact With an individual state is a rarity. However, it is easily foreseeable that a manufacturer’s product would travel from nation to nation and from state to state. A manufacturer, with assistance from national or international marketing campaigns or through the Internet, can therefore easily tum entire nations into a single targeted market without giving a thought of addressing individual states.
In view of these realities, the Court should create a clear process whereby proper personal jurisdiction involving potential defendants with a national market can be easily and predictably analyzed. Some commentators have proposed statutory solutions, while others have proposed the creation of a rebuttable presumption, with the burden on the out-of-forum defendant to show that it took affirmative steps to avoid the forum state when it placed its product into the stream of commerce.
This Article first traces the historical development of the Court’s personal jurisdiction jurisprudence from the territorial limitations of Pennoyer to the articulation of minimum contacts as a substitute for actual physical presence in International Shoe through its development of the split stream—of—commerce analysis presented in both World-Wide Volkswagen and Asahi, and lastly examines J, McIntyre, the Court’s most recent effort to solve the stream-of—commerce conundrum created by its prior opinions.
Lastly, this Article proposes a more balanced, and perhaps more elegant, approach to the stream-of-commerce conundrum, asserting that the Court should adopt a burden-shifting approach. Analysis under this proposal would first require that a plaintiff seeking to hale
a manufacturing defendant into court in a particular jurisdiction show that the defendant had engaged in a national marketing strategy without regard to state territorial borders. If this burden were met, then the burden would shift to the defendant to show that it took specific steps to avoid marketing or selling its product in the jurisdiction at issue.
This Article analyzes the issues that arise from the various time limits imposed by differing statutes of limitations involved in civil claims. The Author asserts that the current state of the law revolving around the various statutes of limitations risks the rejection of otherwise legitimate claims by allowing arbitrary time limits to be imposed across many different civil claims. The Author posits a number of solutions that might provide relief for individuals affected by varying statutes of limitations.
The Author advocates abandoning the current system of law that allows for varying statutes of limitations and replacing it With a single limitations period for the majority of civil claims. Additionally, the Author advocates abrogating the current view that failure to bring a claim within the statutorily defined time period results in an absolute bar from recovery and replacing it with a presumption of untimeliness, which may be overcome upon a showing of good cause.
Clients may deny climate change, but facts are facts, oceans are rising, and lawyers have duties to their profession and third parties. Applying traditional concepts of professional responsibility, with frequent consideration of the government lawyer’s duties to the public,
this Article considers how the lawyer’s duty of competence, duty to advise clients, duty of fairness to others, duty to the courts, and duty to organization clients all apply to the controversial context of sea level rise. While clients can, as a policy matter, choose the “do
nothing” option, lawyers have a duty to confront the deniers and to ensure that material facts are disclosed and meaningfully considered. Participating in a client’s deceptions and omissions could expose lawyers to negligent misrepresentation or disciplinary cases, but perhaps even more importantly, lawyers have a duty to the next generation, too.
In the 19803 and 19903, behavior analysts vigorously debated ethical concerns about the use of certain behavioral interventions to address severe behavior of disabled children. In 1997, while that debate was still ongoing, the Individuals with Disabilities Education Act (IDEA)
was amended to require educators to consider the use of “positive behavioral interventions and supports,” among other strategies, to address problem behavior that impedes a disabled child’s learning. Since 1997, the “positive behavioral interventions and supports” framework has shifted focus, but IDEA’s language essentially has stayed the same. In addition, some states have enacted poorly—worded statutes or regulations in order to define positive or non-positive interventions. The legal requirements for behavioral interventions became even more onvoluted after the Second Circuit Court of Appeals held that a state may ban the use of any non-positive interventions, even though non-positive interventions can be effective tools to address severe behavior, particularly self—injurious and aggressive behavior, in disabled children.
This Article contends that a complete ban on the use of non-positive behavioral interventions violates a core tenet of the IDEA, specifically that each child with a disability is entitled to an individualized education program designed to meet that child’s unique needs. After an in—depth review of both the science and the law pertaining to behavioral interventions, this Article proposes ways in which Congress can amend IDEA to clarify the statute’s use of behavioral intervention techniques.
This Article analyzes how an exemption to the Fair Housing Amendments Act (FHAA) and the rules governing age-restricted communities intersect to affect the fundamental right of families to cohabitate. The Author focuses on the FHAA senior-housing exemption and how it negatively impacts minors—namely grandchildren—seeking to stay with extended family—usually grandparents—due to unfortunate emergency circumstances. This Article uses the constitutional justification from Moore v. East Cleveland and its line of cases to support a right of family cohabitation, based on the right of free association. The Article further contends that the right of family cohabitation is justified based on this country’s history and tradition of extended family caring for minor relatives.
The Author proposes a federal exception to the FHAA senior-housing exemption that would allow minors in unfortunate circumstances to live with extended family in age-restricted communities, arguing that the proposed exception comports with the Supreme Court cases that establish the right of family to associate as a fundamental liberty. The Author proposes several emergency conditions that should trigger an automatic exemption from an age-restricted community’s age requirement and explains why his proposed exception would benefit age-restricted communities.