Category: Volume 49 Page 1 of 3

The True Impact of Reed v. Town of Gilbert on Sign Regulation

In Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015), the Supreme Court held that the temporary non-commercial sign regulations of a local sign code violated the First Amendment because they were content based and did not survive strict scrutiny. On its face, the Court’s holding was not extraordinary and was unanimously supported, but the Court fractured over the rationale for the holding. 

The six-Justice majority’s analysis has led to some confusion. In contrast to the three concurring opinions, the majority indicated that content discrimination should always trigger strict scrutiny, even if the law was passed in good faith, furthered a content-neutral justification, and did not single out any idea or viewpoint. The majority also suggested that a law is “content-based” if an officer must read it to enforce it, however glancing that review. The majority’s analysis thus raised questions concerning the applicability of strict scrutiny review in related contexts, as well as the appropriate application of content neutrality analysis.

Moreover, it is not clear that, if the issue were to come back before the Court, the majority analysis would hold sway. Three of the six Justices in the majority supported a narrowing concurring opinion, and one of the remaining three Justices in the majority is no longer on the Court.

Deciding Where to Take Your Takings Case Post-Knick

The Supreme Court’s decision in Knick v. Township of Scott changed the landscape for regulatory takings cases. In this decision, the Supreme Court reversed one of the few bright-line rules in regulatory takings cases: the state-litigation requirement. Now, property owners with inverse condemnation claims are no longer forced to exhaust state-court remedies before suing in federal court. Accordingly, both plaintiffs and defendants have a new option available to them with regulatory takings cases. This Article discusses the history of the state-litigation requirement until the Supreme Court’s decision in Knick. Further, this Article discusses the Knick case, including the Supreme Court’s rationale for reversing its own precedent. Finally, this Article explores the new options that litigants have available post-Knick and evaluates which options are most desirable depending on the litigant’s objectives.

The Greening of Florida’s Constitution

The Florida Constitution was ratified in 1968 at the dawn of modern environmental law. This Article identifies the wide range of constitutional provisions and gives an historical context for each. Florida’s organic legal document contains broad aspirational statements, unique governmental structure, authorization for incentives and programs to protect environmental resources, and the largest environmental funding provision in our nation’s history. These provisions provide the state with the authority and funding to address environmental issues in one of the country’s fastest growing states.

Foreign Threats, Local Solutions: Assessing St. Petersburg, Florida’s “Defend our Democracy” Ordinance as Potential Model Legislation to Curb Foreign Influence in U.S. Elections

The influence of money in national and state politics is hardly a new phenomenon, and it is starting to become more prevalent at the local level. In October 2017, the City of St. Petersburg, Florida passed a historic ordinance seeking to regulate political spending in its local elections. The Ordinance was popularly known as a rebuke to Citizens United due to the limits it placed on independent expenditures by political action committees. However, a lesser-known—but arguably more impactful—aspect of this local legislation was its attempted regulation of political spending by foreign corporations.

While the Supreme Court has confirmed that the existing ban on political contributions by foreign nationals extends to foreign corporations, the contours of a “foreign corporation” have never been defined. In the absence of any federal guidance, the St. Petersburg Ordinance provides the first attempt to define and regulate such an entity. This Comment, after explaining the Ordinance’s legal backdrop and operative parts, focuses on the constitutional issues that the Ordinance raises. It then explores anticipated arguments that are likely to be made by both sides if the Ordinance’s validity is challenged in litigation. Ultimately, while the resolution of these issues remains uncertain, an understanding of their nuances will be useful to local governments around the country that may be contemplating similar measures to protect the integrity of their elections.

Reactionary Legislation: The Marjory Stoneman Douglas High School Public Safety Act

The Marjory Stoneman Douglas High School Public Safety Act (S.B. 7026) is a legislative enactment seeking to make Florida schools safer and keep firearms out of the hands of mentally ill and dangerous individuals. The rationale is simple, S.B. 7026 was a necessary step in preventing another mass shooting like the one that unfolded at Marjory Stoneman Douglas High School in Parkland, Florida, on February 14, 2018, when a gunman slaughtered seventeen people, including fourteen students. Despite S.B. 7026’s inherent soundness, this Article argues that Florida legislators did not engage in a necessary deliberative review of S.B. 7026 before its passage and the bill will likely lead to unintended consequences. Further, this Article analyzes S.B. 7026 and concludes that the uncertain consequences involved with most legislation, including S.B. 7026, is best mitigated by affording the time inherent in the legal process and engaging in deliberate, expansive review procedures before passing legislation.

The Start of a Revolution: Mapp v. Ohio and the Warren Court’s Fourth Amendment Case that Almost Wasn’t

Mapp v. Ohio tells the remarkable story of Dollree Mapp and her encounter with the Cleveland, Ohio, police during a search of her home. Although they were there on suspicion of criminal activity unrelated to her, Dollree eventually became the center of the Warren Court’s inquiry into expanding the Exclusionary Rule to the states. A case that started out as a First Amendment issue, was eventually decided on Fourth Amendment grounds. While Mapp v. Ohio is regarded as the start of the Warren Court’s criminal procedure revolution, the true delight of this case lies in the story of Dollree Mapp and her journey into Supreme Court spotlight as one of the most important cases of the 20th Century. 

The Ripple Effects of Gideon: Recognizing the Human Right to Legal Counsel in Civil Adversarial Proceedings

Procedural fairness and equal protection were the core of Gideon’s reasoning for a right to counsel for indigent criminal defendants. Under the same constitutional values, there should be a right to legal assistance of counsel for indigent civil litigants, especially in adversarial proceedings. This Article outlines the constitutional basis for a civil right to counsel. Further, it stresses the need for legislation to address the massive shortfall in legal representation available to indigent persons in the United States. Recognition of civil Gideon as part of the Constitution’s promise of justice accommodates a moral revolution. It exemplifies a shift in consciousness, rippling beyond the scope of the law and encompassing interpersonal relations. 

Conversations on the Warren Court’s Impact on Criminal Justice: In re Gault at 50

This Article examines the Supreme Court’s landmark In re Gault decision of 1967, in which the Supreme Court ushered in the “due process era” of juvenile justice in America by determining that juveniles were entitled to the right to counsel and other procedural safeguards during delinquency proceedings. But this Article continues with a critical focus on the impact of the decision today, examining a dichotomy between what was declared a “revolution in children’s rights,” and how youth in the criminal justice system still have not seen the extent of constitutional protections declared necessary by Gault. Arguing that Gault has never been fully implemented, the Article offers two explanations for its stunted application, stating neither of which was within the Gault Court’s control. Finally, it considers more recent juvenile sentencing decisions in light of the post-Gault era, outlining the conclusion that comprehensive, lasting juvenile justice reform must be sought in state legislatures. 

Griffin v. Illinois: Justice Independent of Wealth?

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial resources, are still more likely to face difficulty obtaining adequate representation, more likely to be jailed before trial, more likely to plead guilty to avoid continued incarceration, more likely to face difficulty with fees assessed during incarceration, more likely to face continued monetary charges while on probation or parole, and more likely to face incarceration based on inability to pay criminal justice debt. The current two-tiered justice system reflects the concerns expressed by Bryan Stevenson “that the opposite of poverty is not wealth; the opposite of poverty is justice.” 

This Article describes how the promise of equal justice, as developed in Griffin and extended by the Supreme Court, has gone largely unfulfilled in modern society. It also presents an overview of some reforms and recommendations to help the system restore Justice Hugo Black’s concept of equal justice and address Bryan Stevenson’s concerns over the injustice of poverty. 

Chapman v. California: Harmless Error and the Warren Court’s Progressive Legacy

The Warren Court is celebrated for revolutionizing protection of individual liberty. While Chapman v. California might seem to stand in stark contrast with this view, a closer look reveals it is consonant with the Warren Court’s progressive jurisprudence. Chapman held that violations of constitutional rights may be subject to harmless error analysis, however it created a strict test for this analysis and shifted the burden of proof to the government, demonstrating the Court’s continued commitment to constitutional rights. Had subsequent Courts been faithful to Chapman’s construct, it might well have reduced, at least in part, the continuing problems with ineffective assistance of counsel and prosecutorial misconduct that currently mar the criminal justice system. 

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