Category: Volume 48 Page 1 of 3

Many proposals have been considered to improve the Florida judiciary. These have included proposals for term limits for judges, as well as changes to the selection and retention methods for trial court judges. But identifying the optimal method of judicial selection to obtain the highest quality occupants for judicial office has always been elusive. Benchmarks to identify the characteristics required to be a “good” judge involve a degree of subjectivity that is difficult to measure and, to the extent that they can be quantitatively evaluated, have their own series of limitations.

Consistent with the method of judicial selection historically employed by the states, Florida has a long history of electing its trial court judges. In 1998 Florida adopted the “merit selection” local option in both counties and judicial circuits. The question considered by this paper is whether the preference for one method over another (election v. selection and retention) has ideological undertones, and what other factors may influence the adoption of a selection method, including the role of the judiciary in the debate, as well as what issues must be addressed if merit selection should ever be presented to Florida voters again in the future. From this, the future viability of implementing a merit selection process for trial judges in Florida can be considered.  

In this Article, Senior Judge Karl B. Grube, who serves in both the County and Circuit Courts of Florida, explores shortcomings and serious concerns in the operation of Florida’s de facto, non‐statutory DUI/DWI diversion programs. The Article reviews the history of these diversion programs, their effectiveness with respect to their impact on public safety, on deterrence, and on the fair, effective, and efficient delivery of justice. Attention is drawn to the role of prosecutors and judges who support such programs and the effect of these programs in reducing enforcement, conviction rates, and pending caseloads. The Author is a member of the Florida Impaired Driving Coalition and has contributed his services as a researcher and has authored various Coalition papers. The Author’s positions, opinions, and recommendations in this Article, however, are solely his own and not those of the State of Florida or its constituent Departments.

Although some intellectual property issues transcend sectors, public‐sector intellectual property brings unique issues and challenges not found in the private sector, in part due to its heavy basis in statute. Relevant subjects include local governments’ ownership and enforcement in Florida, contracts involving intellectual property, and immunity for infringement. This Article begins by discussing different types of intellectual property: patent, trademark, copyright, and trade secret. It moves to local governments’ ownership and enforcement in Florida, sometimes contrasting with the rights private applicants enjoy. Major ownership issues include the difference between inventorship and ownership for patents; trademarks’ dependence on statute; limitations of copyright; and the importance of trade secrets to states. Regarding enforcement, the Article covers the importance of awareness and standing to assert enforcement rights. As for contractual issues, the Article focuses on employment contract issues, honing in on patents. Assignment of ownership rights follows a general rule subject to exception, but determining ownership right as between an employer or an employee depends on factor‐based tests in certain circumstances. Independent contractor status may complicate things; agency law, possible fiduciary duties, and other factors may come into play. Finally, infringement is much different in the public sector than in the private. As decided in a controversial case, the United States Supreme Court determined that states are immune to suit for intellectual property infringement without their consent.

This Case Note addresses the constitutional status of the Florida Tax Credit Scholarship Program (FTCSP) under Florida’s Uniform Education Provision in the wake of McCall v. Scott. The purpose of this Case Note is to give a comprehensive overview of the Program’s status post‐McCall. McCall is a case out of Florida’s First District Court of Appeals, in which the Plaintiffs challenged the constitutionality of the FTCSP. In that case, which was dismissed on standing grounds, the Plaintiffs argued that the FTCSP was unconstitutional. This paper discusses some relevant Florida law leading up to McCall, lays out the Court’s discussion of standing, and then argues, like the McCall Plaintiffs do, that in light of Florida precedent, the FTCSP isunconstitutional. This paper further argues that should the constitutionality of the program be challenged again, courts should find the FTCSP unconstitutional. Furthermore, it posits an amendment to the Uniform Education Provision under which the FTCSP would be constitutional and suggests that supporters of the scholarship program should pursue such an amendment if they wish to ensure constitutionality of the FTCSP.  

Regulating the discharge of nutrients such as nitrogen has proven a difficult and complex task for both state and federal environmental regulators. Nitrogen‐rich runoff emanates from agricultural operations, stormwater, and other nonpoint sources, making it difficult to control using conventional forms of regulation governing point sources of pollution. But the participants in the Tampa Bay Estuary Program’s Nitrogen Management Consortium have worked within the contours of federal and state law to regulate nitrogen pollution at the local level on a voluntary basis by engaging stakeholders and regulators in a collaborative and participatory process by which public and private participants agree to limit their nitrogen discharges in accordance with a plan drafted by the participants and submitted to state regulators once every five years. The plans also include methodology for monitoring water quality in Tampa Bay. This program has contributed significantly to a drastic improvement in water quality in Tampa Bay over the last decades as formerly depleted seagrass acreage has been restored dramatically, showcasing the promise of local, stakeholder‐driven regulatory programs to reduce pollution and improve environmental conditions.

This Essay examines the events that led to Dean Emeritus Bruce Jacob being the recipient of the National Association of Criminal Defense Lawyers’ (NACDL) prestigious Champion of Indigent Defense Award. Dean Jacob represented the State of Florida in the Gideon v. Wainwright case, arguing for adherence to Betts v. Brady, which did not provide the right to counsel for indigent state defendants absent special circumstances. After arguing Gideon before the United States Supreme Court, Dean Jacob spent much of his career advocating for indigent defendants’ rights to effective assistance of counsel. Although some may find an irony in these two roles, this Essay notes the symmetry when looking at Dean Jacob as a true “minister of justice.”

Bruce Jacob is too often identified with just one case: Gideon v. Wainwright. Gideon, however, was not Bruce’s only Supreme Court case, let alone his only criminal case. Bruce worked tirelessly for the rights of criminal defendants throughout his distinguished legal and academic career. Kaufman v. United States, the subject of this Article, is just one of those “other” cases. The tale of Harold Kaufman, his almost‐ comical crime spree, his redemption, and Bruce’s involvement is the stuff of Hollywood movies. For those of us who know Bruce, it is just another snapshot from a dedicated academician’s wonderful life.

Anyone who has spent time in the presence of Clarence Thomas off the bench is sure to feel the contradiction: He seems such a genuinely nice man, but this side of his personality never ever shows in his judicial opinions. A good case can be made that the attitudes that constitute personality are fundamentally important in a Supreme Court justice, whose decisions in close cases (and almost all of those in the Supreme Court are) usually turn on intangibles like reverence for the Founders or sympathy for the little guy. In person, Thomas exudes such sympathy, but it never shows in his opinions—why not? Part of the answer lies in his lifelong affinity with Bigger Thomas, the protagonist in Richard Wright’s Native Son. Bigger yearned for a dogma that would help him understand his role in the perplexing world, and, in a far more sophisticated way, so does Justice Thomas. He finds that dogma in an originalism so severe that even its protagonists question his version. Yet he persists, even though this makes him less and less relevant to the Court’s continuing dialogue. There seems no way out of this blind alley, and Justice Thomas may end his days as professionally bitter and burnt out as Richard Wright was after a career that never again reached the heights of his early successes. But a hint of salvation may come from the example of another embittered black man, Malcolm X, as portrayed by the director Spike Lee. In the years immediately before Malcolm’s assassination, he seemed to soften his dogma and to allow more range to the benign aspects of his personality. Such a turn would make Clarence Thomas a better justice—but it does not seem to have much chance of happening.

Judges must decide cases without regard to fear of public reaction or personal consequences. This Article explores a particular act of judicial courage: the decision by United States District Judge William Augustus Bootle in January 1961 to order the desegregation of the University of Georgia. The Article tells the story of how a white southern federal judge, whose background included no evidence of a particular interest in civil rights, found himself in the center of a social and political firestorm when Hamilton Holmes and Charlayne Hunter made their case to become the first African‐American students in the one hundred and seventy‐five‐year history of the University of Georgia. The Article draws upon contemporary accounts of the events and extensive archival evidence to evoke a sense of the courage it took for Judge Bootle to decide that case solely upon the law and the facts, and it analyzes Judge Bootle’s decision as a matter of judicial craft.