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Face Value: A Proposal for Federal Regulation of Facial Recognition Technology Companies

The lack of federal regulation of commercial facial recognition technology (“FRT”) companies, which use “face mapping” to capture and store Americans’ biometric information, places the onus on states to protect citizens’ most sensitive data. And with the recent prevalence of large-scale data breaches, Americans must ask when—not if—their biometric data will be exposed. Since onset of the COVID-19 pandemic, government agencies have increasingly required citizens to use these companies to access services like unemployment or social security benefits, essentially resulting in a citizen’s “forced consent” to the companies’ biometric handling policies. Undeniably, FRT has become a vital part of society. Yet, without federal regulation of FRT companies’ biometric practices, third-party collection of biometric data on behalf of the government leaves Americans vulnerable to irreparable harm.

This Article addresses the benefits of FRT as well as the potential consequences for Americans if FRT is left unregulated. The Author focuses on the governmental use of commercial FRT companies—specifically, commercial FRT companies Clearview AI and The Author explores current state biometric laws, privacy laws, and the Federal Trade Commission’s role in enforcing federal privacy regulations pertaining to biometric information. Finally, the Author recommends federal legislation that creates a national biometric safety board to ensure the handling and security of an individual’s biometric information.

“Providing for Cooperation Between Private Adoption Entities and the Department of Children and Families?” When Legislative Intent Falls Short

Biological parents make the difficult choice to voluntarily place their child for adoption for a variety of reasons. Florida’s adoption intervention statute aims to honor a parent’s choice while promoting the child’s best interest by providing permanency. Under the adoption intervention statute, a parent whose child is removed from his or her physical custody by the Department of Children and Families has the right to choose a private adoption instead of working a case plan for reunification. While adoption is not the first, or best, choice for every situation, there are many benefits to electing a private adoption instead of allowing the child to be adopted through, or potentially languish in, Florida’s foster care system.

Private adoption through adoption intervention allows a parent to regain a sense of control and play an active role in the child’s permanency by choosing an adoptive placement for the child. Although a seemingly straightforward process, adoption intervention has caused frustration for the court and parties involved. The statute’s current state provides insufficient guidance to the court. The working relationships between the main parties involved in an intervention proceeding are sometimes complicated, on one or more sides, by over-zealous representation and mutual skepticism about each other’s position as to the purposes of the intervention statute, how it should be interpreted and applied by the court, and the child’s best interest. As a result, courts across the state of Florida interpret and apply the statute differently. Consistency is not easily found, even within the same circuit. This Article identifies issues within the current structure of the adoption intervention statute and its application, provides an overview of the competing interests, and proposes solutions to promote cooperation between all parties involved to come closer to a mutual understanding of navigating adoption interventions.

Conflicting Parameters of Code Enforcement Fines and Liens Pursuant to Chapter 162 of the Florida Statutes, Timbs, and the Eighth Amendment: How Much Is Too Much?

The Excessive Fines Clause of the Eighth Amendment of the United States Constitution bans federal, state, and local governments from imposing excessive fines in civil and administrative proceedings. Throughout Anglo-American history, ii excessive fines in civil and administration proceedings has been “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition” as a safeguard to rein in the government’s power to obtain excess payments in cash or in kind as punishment for an offense. In United States. v. Bajakajian, the Court ruled that a fine was excessive and in violation of the Excessive Fines Clause of the Eighth Amendment if it was “grossly disproportional to the gravity of the defendant’s offense.” More recently, the Court in Timbs v. Indiana held that the Excessive Fines Clause of the Eighth Amendment is incorporated into the Fourteenth Amendment’s Due Process Clause, making federal law applicable to state and local governments. Timbs suggests that a new day has come to scrutinize the size of fines and forfeitures in determining whether the size of fines may be in violation of the Excessive Fines Clause of the Eighth Amendment. While Bajakajian supports the proposition that the legislature is the initial branch of government that determines ranges of fines, it is incumbent that the legislature does not violate the Bill of Rights, which now includes the Excessive Fines Clause of the Eighth Amendment. Timbs embraces all-inclusive language that legislative enactments of fines that are “out of accord with the penal goals of retribution and deterrence” and that yield “fines [as] a source of revenue” must be scrutinized.

Translating the gravity of an offense into a monetary figure is not a simple task. By virtue of Chapter 162 of the Florida Statutes, the legislature has enacted statutes that delegate to local governments and their Special Magistrates and Code Enforcement Boards the right to decide whether code violations exist, and if so to impose unlimited cumulatively aggregated per diem fines that become a lien on an owner’s real property. After Timbs, the size of fines should matter and must be based on the gravity of a violation and whether the violation has caused harm or damage to the neighborhood. Therefore, the legislature, the quasi-judicial body, and ultimately the courts need to consider size of fines without strictly relying on the deferential doctrine that removes from courts the ultimate decision-making power to determine whether the legislature’s political judgment is justified in applying substantial economic sanctions.

One size does not fit all violations, and without considering the gravity of a violation and the application of the Excessive Fines Clause of the Eighth Amendment, the harm and damage caused by a code violation needs to be considered rather than assumed in any fact intensive analysis to determine if fines violate the Excessive Fines Clause of the Eighth Amendment. Otherwise, if local governments attempt to fit every violation into a one size fits all category, the legislature and local governments’ Special Magistrates and Code Enforcement Boards will have free rein in deciding the size of a fine without regard to harm and damage and will permit local governments’ to impose economic sanctions from private citizens as a source of revenue to help finance local governments code enforcement departments in lieu of imposing state and local taxes as provided by law.

For too long, the Excessive Fines Clause of the Eighth Amendment has been one of the Bill of Rights least followed protections, even though it was enacted to curb “the government’s power to extract payments, whether in cash or in kind.” After Timbs, the legislature and local governments are obligated to follow this important decision so that excessive fines are not assessed. Until and if the legislature and ultimately the courts consider the impact of Timbs, it is now up to local governments to consider reductions of substantial aggregated fines. Some local governments have attempted to comply with the Excessive Fines Clause of the Eighth Amendment by reducing the aggregated and accumulated fines by as much as 85% to 90% as long as payment is made within a set time period and there has been compliance with code violations. This is an affirmative step toward compliance with the Excessive Fines Clause of the Eighth Amendment and Timbs.

While Chapter 162 of the Florida Statutes allows local governments to reduce code enforcement fines and liens, it is not mandatory. It is time for the legislature and ultimately the courts to consider the impact of Timbs and consider curbing fines and liens to comply with the Excessive Fines Clause of the Eighth Amendment. As legal scholars and the courts debate the impact of Timbs and its directive to the legislature, local governments, and the courts to scrutinize fines and liens so that there are limitations on the power of the government to impose excessive economic sanctions, the question as always is: how much is too much?

Evacuation and Our Growing Population: County Clearance Times and Comprehensive Plan Consistency in Coastal High-Hazard Areas Under Florida Statutes Section 163.3178(8)

Florida may be known as the Sunshine State, but ironically is also the state most likely to be hit by a hurricane. If you live anywhere near Florida’s coastline, you’re familiar with the dreaded “cone of uncertainty” and what it means to find yourself in it. Do you stock up and hunker down, or do you get the hell out of Dodge? Your decision likely depends on how long you think it will take to evacuate. What if you were told that it would take up to three and a half days to get to safety? Would that affect your choice?

The Regional Evacuation Studies published by the Florida Department of Management Services are the basis by which evacuation times are determined under state law, and they paint a dire picture, particularly for counties along our southern coastlines. The problem is that these evacuation times have no basis in reality because the assumptions underlying the data are patently unrealistic in themselves. These exaggerated evacuation times can create distorted expectations on the part of potential evacuees, perhaps causing people to stay put when they should go. But the clearance times also have major implications on local land planning decisions under Section 163.3178 of the Florida Statutes.

This Article discusses evacuation times in the context of a recent land use case, arguing that the state-mandated clearance times are arbitrary, produce needlessly inflated results, and should be abandoned in favor of an approach that simply requires developers to fully mitigate their impacts.

Regulating And Enforcing Speaker Rights In The Public Forum

This Article provides a practical examination of public forum law including effective enactment, enforcement and defense of laws, rules and policies regulating First Amendment activity, challenges that are raised against such regulation, and applicable defenses to these challenges. Initially the classes of public fora are considered by defining and distinguishing between each in order to provide a foundation to guide practitioners. The author supports the court created interpretation providing four distinct public forums: traditional, designated, limited and non-public forums, each allowing distinct levels of government regulation. The court created doctrine of government speech is also reviewed to provide a more complete structure of consideration when regulating in this area. These legal standards are examined in their practical environment comparing court decisions made in the context of parks, sidewalks, government buildings and publicly sponsored events. The concepts are finally applied to challenges raised in response to the limiting government action including recent case law controlling retaliation claims against government actions alleged to violate individual First Amendment rights through enforcement actions imposed.

Post-Pandemic FINRA Arbitration: To Zoom or Not to Zoom

The COVID-19 pandemic has raised serious questions about disputants’ access to justice. Early on in the pandemic, in March 2020, U.S. courts shut down jury trials, judges conducted almost all appearances and arguments on videoconference, and many civil cases were placed on hold. Similarly, alternative dispute resolution forums shut down their in-person services, pivoting like the rest of the business world to videoconference technology to replace in-person meetings such as mediation sessions and arbitration hearings. This pivot led to rapid innovations and creativity almost overnight in the provision of dispute resolution services without any face-to-face interactions. Praise and critique alike followed. Empirical studies of arbitration experiences and outcomes during the first year of the pandemic yielded mixed results. Focusing on arbitration of securities industry disputes, this Article contributes to the literature exploring the impact of the pandemic on arbitration and explores whether parties arbitrating their disputes at FINRA Dispute Resolution Services during the pandemic have had access to justice equivalent to the justice that was available pre-pandemic. In particular, the Article analyzes data about FINRA customer arbitrations over the course of the pandemic, from onset in March 2020 through mid-2022, when most municipalities had lifted COVID-19 restrictions. The Article relates empirical data on the outcome of FINRA customer arbitration during the pandemic, and then analyzes that data to explore whether Zoom arbitration at FINRA impedes access to justice.

A Model for Post-Pandemic Remote Arbitration?

Is Remote Justice Still Justice? This Article approaches the question posed in this symposium edition by looking to the future, beyond the pandemic emergency use of remote arbitration proceedings. It zooms in on one mandatory arbitration forum–the Financial Industry Regulatory (“FINRA”) securities arbitration forum–describing the steps that FINRA took to evaluate remote arbitration; outlining the resulting changes to its policies, resources, and rules; and illuminating features of the FINRA forum that may position it as a model for evaluating post-pandemic remote arbitration in other mandatory arbitration forums. The Article makes several contributions to the literature on mandatory consumer arbitration. First, it provides transparency and accountability by bringing to public light steps taken within the forum that might otherwise be unavailable except to insiders by describing the post-pandemic work of FINRA’s National Arbitration and Mediation Committee and newly formed Zoom Task Force. This descriptive, historic account includes the publication, with FINRA’s permission, of the results of a survey to participants in FINRA remote hearings during the pandemic’s emergency phase. Second, it builds upon scholarship positing that FINRA is an arbitration archetype with justice-enhancing features. In this regard, the Article identifies three features unique to FINRA indicating that aspects of its work evaluating post-pandemic remote arbitration could positively supplement evaluative frameworks for other mandatory consumer arbitration forums. These features include: (1) disciplinary action to enforce forum rules and norms; (2) government oversight and stakeholder engagement; and (3) high levels of transparency and disclosure. Finally, the Article proposes a path forward, recommending that other forums create strong technological infrastructure to hedge against future disruption risk, adopt transparency as a foundational forum attribute to facilitate trust-building and legitimacy, cultivate relationships with and seek the feedback from wide-ranging stakeholders about their experiences in the forum, involve public participation in the early stages of rulemaking, and provide resources and guidance accessible to one- shot forum participants. While this Article does not directly answer the symposium’s framing question, the contributions it makes assist in designing a framework that may help answer that question in the future.

Virtual Mediation: The Only Door Needed in the Multi- Door Courthouse?

The COVID-19 pandemic compelled courthouses to close their doors and prompted mediators to facilitate resolution of disputes in a virtual space. As a result, the use of online processes accelerated exponentially. Virtual mediation, with a human mediator, parties and lawyers participating on a zoom or other platform, became an appealing alternative to traditional methods of dispute resolution. Despite the necessity of virtual replacements to in-person dispute resolution processes, many practitioners were skeptical about their ability to shift to virtual mediation practice. Technological barriers were only one concern. Mediators feared that the absence of in-person interactions would negatively impact mediation processes and outcomes. Fortunately, however, virtual mediation proved to be an efficient and effective alternative to in-person mediation.
As the pandemic subsides, surveys demonstrate that mediators believe virtual mediation should continue as a common, or even presumptive, dispute resolution alternative. Practitioners value the effectiveness and flexibility that virtual mediation offers. Indeed, mediators and disputants discovered that virtual mediation tends to be less expensive, more accessible, and as equitable in process and results as traditional, in-person, mediation. As we emerge from the worldwide COVID-19 pandemic, it is time to add a new door to the multi-door courthouse and declare that the presumptive dispute resolution process is virtual mediation.

Putting a Moratorium on Moratoria: Avoiding an Unlawful Regulatory Taking While Preserving SafeRental Housing During a National Crisis

The Center for Disease Control’s eviction moratorium for nonpayment of rent during the COVID-19 pandemic alleviated immediate costs for affected tenants who were financially burdened during periods of economic shutdown—but at what cost? While this moratorium was invalidated by the United States Supreme Court in Alabama Association of Realtors v. Department of Health and Human Services for exceeding the power of an executive agency, the Court allowed for the possibility of this moratorium being lawful if it were passed by Congress. Within the dicta of the brief opinion is language praising the hallowed property right to exclude followed by a footnote to Loretto v. Teleprompter Manhattan CATV Corp.—the leading case on physical invasion regulatory takings. What seems to be harmless dicta at first glance could potentially lead to explosive legal question: if a future moratorium on evictions for nonpayment of rent was enacted by Congress, could a regulatory taking result?
This Article explores the eviction moratorium and its resulting litigation, breaks down the meaning and jurisprudence of federal regulatory takings, and analyzes the eviction moratorium under the different theories of regulatory takings. Based on the Supreme Court’s recent decision in Cedar Point Nursery v. Hassid, this Article finds that a future eviction moratorium similar to the CDC’s would be found unconstitutional for violating the Fifth Amendment under a physical invasion theory of regulatory takings—a per se rule requiring no balancing test by a court. Finally, this Article concludes by suggesting alternative crisis rental housing programs that balance the equities of relevant parties without amounting to a regulatory taking.

The Wrong Target for the Right Whales: Why New Federal Fishing Regulations Improperly Target the Maine Lobster Industry

“Cause I’m livin’ on things that excite me, be they pastries or lobsters or love.” Like Jimmy Buffet, many people around the world get excited when they see lobster on the menu. Recently, however, the crustaceans have gone from coveted to controversial because of a legal battle between the American commercial lobster fishing industry and marine mammal activists. In response to this dispute, United States government agencies announced new commercial lobster fishing regulations in an effort to reduce the threat of entanglement that commercial fishing gear poses to the critically endangered North Atlantic right whale.
This Article argues that these new regulations, while well-intended, nevertheless improperly target and damage the Maine lobster industry; an industry that has not been credited with a right whale entanglement in nearly two decades. In doing so, this Article explores the histories of both the Maine lobster industry and the North Atlantic right whale, analyzes the ongoing legal battle between embroiling the two, surveys the new regulations and their impacts, and finally argues that the new regulations are flawed to a point that warrants judicial intervention. This Article then concludes with a short afterword discussing somewhat unexpected political and legal developments that occurred after the Article was submitted for publication.

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