In the Summer of 2020, America saw a racial reckoning in the wake of George Floyd’s murder. Racial disparities in our justice system have always been present but entered the cultural zeitgeist as Americans took to the streets to protest the disparate treatment of people of color by law enforcement. This Article suggests that the racial gap can be bridged through the American court system itself and examines the Federal Rules of Evidence as a starting point. First, the author examines the promulgation of the Federal Rules of Evidence, focusing on the history and circumstances surrounding their inception. Next, the author identifies and discusses racial disparities in specific Federal Rules of Evidence that illustrate how, in many instances, the Rules themselves are the cause of what they originally sought to eliminate. Finally, the author provides a practical solution that utilizes Rule 403 to combat the implicit racial bias found in the Rules and reduce the correlation between race and how much justice an individual receives.
Florida Rule of Civil Procedure 1.38,0 Failure to Make Discovery, Sanctions, informs in which court to enforce a litigator’s discovery right, what orders to seek from the trial court, and sanctions that may eventually be available. However, the rule does not inform what criteria the trial court should consider in making its rulings. Instead, those matters are to be found in voluminous, but divergent, case law. That case law, through prolific, is disjointed and lacking in a coherent sequence. This Article surveys, and resolves, those issues for each Florida court system.
For two reasons, this Article is important for judges and litigation counsels. First on the prolificacy of cases this Article reviews over one hundred cases and bundles those reports into related packets (per court systems). Second on disjointedness; this Article maps and resolves the discombobulation of diverse cases using disparate language in providing analytical rules.
This Article is the first in a series of yearly articles analyzing references, discussion, and applications of the Third Amendment in court, legal scholarship, and popular media and commentary. The Third Amendment’s prohibition on quartering soldiers in houses during peacetime and its requirement that quartering during times of war be authorized by law is not typically discussed (or even known) by most in the legal field. This Article and its future iterations aim to address this neglect by surveying references to the Third Amendment and noting trends in its invocation and discussion across all aspects of the legal field.
As it turns out, the Third Amendment had a bit of a moment in 2020, drawing brief but widespread public attention in early June. A dispute between the mayor of Washington, D.C., and National Guard soldiers over whether they could be housed in a particular hotel led to a great deal of speculation over whether the Third Amendment would be invoked and, if so, whether it would apply to the dispute. While no litigation ended up taking place, this incident brought more attention than usual to this neglected component of the Bill of Rights. This Article describes the dispute, surveys the commentary, and evaluates whether a Third Amendment claim could have even been made in the first place.
Beyond this, the Article surveys citations and trends in arguments invoking the Third Amendment in 2020 caselaw and legal scholarship. The Third Amendment’s restrictions on quartering are often cited to demonstrate a constitutional right to privacy and to substantiate claims that the Constitution and its Bill of Rights were designed to protect civilians against overbearing military and governmental authority. Additionally, the Third Amendment tends to be a go-to citation for litigants who claim that their rights were violated and want to throw every argument they can possibly make at the court. This Article provides a comprehensive breakdown of Third Amendment citations in the caselaw and evaluates arguments invoking the Third Amendment in 2020 legal scholarship.
While the Third Amendment does not get the respect or attention given to adjacent amendments, this Article serves as a first step toward a systematic understanding of the Third Amendment’s role in modern caselaw, legal scholarship, and society.
The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process. This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial. The main issue is not prosecutorial discretion per se, or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. This Article argues for the importance of prosecutorial discretion as a potentially valuable tool and analyzes how and why it creates potential for abuse. The Article concludes with suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process, recentering a defendant’s constitutional rights within the justice system, and implementing safeguards in the prosecutorial function prospectively.
When it comes to bar admission, law students who aspire to join the profession can justifiably question whether Florida law means what it says. Serious tensions exist between the Rules of the Florida Supreme Court Regulating Admission to the Bar and the other transparency, free speech, privacy and judicial funding requirements of the Florida Constitution. The bar examiners have a long-standing, restrictive, and regulatory view of themselves as a constitutional safeguard protecting the public from potentially dangerous attorney aspirants, but the Supreme Court of Florida cannot and should not exempt its agents from the State Constitution.
Open government initiatives, online announcements, and periodic reports can enhance transparency and public understanding. Vague character rules can be rewritten. Individual freedoms of speech and thought can be respected. Needless invasions of personal privacy can be avoided through reevaluation of the financial and mental health inquiries. Burdensome fees can be reduced, and the public at large should contribute to the bar admissions budget. Florida’s principles of ethics and professionalism direct that the voices of the legal community should be heard in our effort to self-govern and administer the justice system.
In most cases, today’s bar applicant is tomorrow’s lawyer. For these applicants, the actions taken by the Florida Board of Bar Examiners create first impressions of the entire legal system. A constitutionally-questionable process is not a good beginning. The Florida Supreme Court, its bar examiner agents, the members of the Florida Bar, the professors and institutions working in legal education – and yes, the future members of the profession – all need to honor our oaths.