Brown v. Board of Education, in my view, split American history. I am certain for African Americans it did. It split American
history into a kind of A.D. and B.C. Prior to Brown, either as a consequence of slavery or a consequence of segregation, African
Americans were subordinated one way or another by law.
I thought one of the most eloquent statements that a president has made about race was the statement that George W. Bush made in Philadelphia last spring when he was attempting to quell the reaction to Trent Lott’s statement at the retirement party for Strom Thurmond. Now, some people might be surprised to hear that. But George W. Bush said that “[e]very day that our nation was segregated was a day our nation was unfaithful to our founding ideals.”
Fundamentally, what I want to do today is to use the lens of Brown v. Board of Education, the celebration of Brown v. Board of Education, and look at it as a “work in progress,” even after fifty years. But before getting to that part of my comments, it bears repeating that we are here to celebrate and recognize that this year is the fiftieth anniversary of Brown. However, we also need to celebrate and recognize all of the Browns, all of the Briggses, all of the Beltons, all of the Davises—that is the Virginia case—and all of the Bollings—that is the District of Columbia case. Those are the names of some of the parents and children that are associated with the five cases that constitute Brown v. Board of Education.
Legislatures are the bedrock of our government; yet legislators and the legislative process itself are commonly viewed with distrust, and even revulsion, by a disquietingly large number of Americans. Public cynicism has increased as legislatures have limited the application of ethics, conflict-of-interest, and financial disclosure laws to themselves. The almost daily reports of individual legislator misconduct confirm in the public mind that there is reason for concern. The result is the problem of legislative misbehavior, which consists of actual or perceived self-serving legislative conduct, coupled with legislative action that keeps legislative behavior invisible to public scrutiny.
Any lawyer who practices in the § 19831 area will confirm that the procedural and substantive complexities of litigating under the statute have become huge. In cases involving claims against sheriffs, the confusion has been compounded by the ramifications of the United States Supreme Court’s decision in McMillian v. Monroe County. For § 1983 purposes, McMillian treats the status of sheriffs as a question of federal law, informed by state law, with classification of the sheriff as a state or local policymaker dependent, in part, upon the particular function performed by the sheriff in that case. If a sheriff is determined to be making policy for the state when engaged in the challenged conduct, the plaintiff cannot sue the sheriff in his official capacity, as that would be tantamount to a suit against the state, forbidden by both the Eleventh Amendment and the Supreme Court’s construction of § 1983.8 A county, subject to suit for constitutional violations caused by its own policymakers, will bear no liability for conduct attributed to a sheriff who is a state policymaker. While a suit against a state policymaker may proceed against the official in his individual capacity, plaintiffs are often precluded from recovering damages by the official’s assertion of the qualified-immunity defense.
A seventeen-year-old girl attended a party with her new boyfriend. Everyone at the party drank alcohol, but she did not. Although the girl said that she was not ready for sex, she engaged in a three-way sexual encounter at the party with her boyfriend and his friend, John. During the encounter, John left the room and the girl and her boyfriend had sexual intercourse. When it was over, her boyfriend left the room and John returned. Wordlessly, John and the girl began having sex. The girl, having second thoughts, rolled on top of John and told him she had to go home. He rolled himself on top of her and responded, “Just give me a minute.” The girl replied, “No. I have to go home.” About one minute later, John stopped the intercourse.
Did John rape the girl, or did she engage in consensual sex? In 2003, the California Supreme Court held that John’s actions constituted a forcible rape. That holding resolved a jurisdictional split and solidified the legal possibility of post-penetration rape as a convictable offense under California’s rape statute. The holding proved controversial, and reactions of approval and disapproval resonated throughout the legal community, media, and general public.4 Reasons for the controversy varied, but two main issues arose: whether courts should recognize post-penetration rape as an offense that is convictable under a rape or sexual assault statute, and if so, based on the facts of In re John Z., whether John actually committed a rape.
With the increased frequency of mergers and acquisitions in the 1980s, Congress became concerned about abusively large payments made to executives when a corporation was acquired. In response to this perceived abuse, Congress enacted a pair of tax statutes designed to reduce or eliminate these payments. Sections 280G and 4999 of the Internal Revenue Code, both entitled “Golden parachute payments,” are punitive tax provisions designed to discourage corporations from making, and executives from receiving, abusively large payments when a corporation is acquired.
In Department of Transportation v. Armadillo Partners, Inc. (Armadillo II), the Florida Supreme Court held that evidence of costs to cure in eminent domain actions, while admissible to establish just compensation, should not be a component of a property owner’s compensation and are not damages but should be considered merely in evaluating the effect of the taking on the remainder property’s market value. In doing so, the Court found that costs to cure are admissible only if tied to the cure’s effect on the remainder’s fair market value. In focusing on the proof offered by the condemnor’s appraisal expert in the case, the Court also held that an expert’s challenged method of evaluation “should ordinarily be treated as an issue of weight, not admissibility.” The Court’s holding applies even when the expert’s opinion contravenes the law of severance damages, which provides that full compensation for a taking should include both ‘“the value of the portion being appropriated and any damage to the remainder caused by the taking.’”
In deciding Armadillo II, the Court rejected years of precedent that addressed the effect of proposed cures on areas outside of the area taken. More important, because Armadillo II concerns expert testimony in general, the decision may encourage experts to ignore established law because doing so affects only the weight, as opposed to the admissibility, of their testimony. By rejecting the long-standing and broadly applicable rule that permits trial courts to exclude expert testimony when it contravenes established law, Armadillo II may mislead juries and lead to erroneous and inequitable jury verdicts.
This Volume of the Stetson Law Review focuses on teaching Elder Law. I am extremely excited about this Volume because it covers two of my favorite topics: Elder Law and teaching. I would like to thank the editors for producing this Volume, as well as the previous editors who approved this project. I am also extremely grateful to the authors for their willingness to write about their approaches to teaching Elder Law. I hope that this Volume will not only contribute to the body of literature on Elder Law, but also offer guidance, insight, and ideas to those currently teaching Elder Law, as well as those who are considering teaching Elder Law in the future.
Like most people, I did not plan my initial involvement in Elder Law. I had taught Federal Income Taxation and related subjects for nearly eleven years when my mother began needing assistance following a series of health incidents. She passed away after six months and, as I reflected on that period, I realized that I had acquired a voluminous amount of knowledge regarding various discrete legal regimes, and that much of this knowledge would be very valuable for students to learn in a structured context.
About this time, I received one of those occasional mailers from the American Bar Association touting an upcoming seminar on something called “Elder Law.” As I reviewed the contents of what was to be covered at that seminar, I realized that what I had spent the preceding half-year doing fit within this rubric and that I could create an experimental course under this title. I have taught this course continuously since that time to anywhere from twenty-five to one hundred students each time, depending upon the vagaries of the academic calendar and competing curricular alternatives. This article explains the current content of this course and some of the pedagogical decisions involved in determining its scope.
The academic territory we now know as Elder Law did not exist when most of us writing for this symposium were in law school. Something both daunting and liberating resonates about driving the first covered wagons over new territory. Lacking a map, we learned from one another and through trial and error. A discipline defined by the client rather than by a discreet body of law, Elder Law reminds the student that law practice should be, above all else, client-centered.