Professional graduate programs occupy a niche space in the ongoing national debates over student speech and the First Amendment. The U.S. Supreme Court has not spoken on the level of speech protections afforded to professional students. When a professional student brings a free-speech claim, lower courts are therefore tasked with developing tests and standards. As a result, there is no unified jurisprudence guiding courts on how to evaluate First Amendment claims at the professional or graduate-school level. This Article first explores the various doctrines employed by courts to analyze claims brought by professional students, including those developed from Supreme Court cases on student speech and public employee speech. These approaches, while helpful, are incomplete to address the unique interests and concerns raised by professional schools and their students. In developing a potential solution, this Article identifies key themes and similarities in approaches taken by three courts in professional speech cases: Tatro, Oyama, and Keefe. This Article then draws from fellow commentators’ approaches and the commonalities among professional student-speech cases to suggest a consistent framework for courts analyzing these claims. First, the court evaluates the proximity of the speech to the school environment to identify whether there is a professional nexus between the speech and documented professional standards of the relevant industry. Next, both the school’s conduct code and disciplinary actions must be narrowly tailored and directly related to legitimate, documented industry professionalism standards. Finally, the court must verify that the school exercised reasonable professional judgment in its discipline of the student. Ultimately, this Article both acknowledges the challenges and harmonizes the common themes among cases where professional schools, students, and courts confront First Amendment free-speech claims.
Healthcare in America is under constant debate, with many calling for changes and mass reform. An area seldom discussed to the degree necessary is the insulin pricing crisis, with one-in-four insulin dependent diabetics reporting that they must ration their insulin doses due to cost. Congress has failed to seriously address the exploitive pricing that occurs for the sale of insulin. Certain states have begun to address this issue on their own but without action from Congress and more unified solutions, the price gouging of insulin will continue. While there may not be a definitive answer to the insulin pricing issue, proper action can undoubtedly result in changes that relieve the financial burden on our nation’s diabetic population. This Article stands to show that the rising costs of insulin is a national crisis. The main issue being the lack of regulatory and legislative attention on the pricing of insulin. This Article addresses the issue by proposing a multifaceted approach, first exploring the historical context surrounding the insulin pricing crisis and how the situation has become so dire. By showing the historical background of insulin pricing, one can see the extent to which pricing has climbed, reaching the point we see today. Following the historical exploration, this Article addresses the current landscape of initiatives in place to address the insulin pricing crisis: legislation and policy, litigation, and patient savings programs. Subsequently, these current policies and practices are critiqued, evaluating their effectiveness and adequacy for addressing the insulin pricing issue. Finally, a more ideal solution to the insulin pricing crisis is presented. Ultimately, this Article seeks to brings to light the crisis facing our nation from the rising prices of insulin.
For half a century, plaintiffs in federal court facing motions to dismiss dutifully cited the familiar Conley v. Gibson mantra that the motion must be denied unless it appears beyond doubt that the “plaintiff can prove no set of facts in support of [the] claim.” The Supreme Court’s 2007 Twombly decision and its 2009 companion case, Iqbal, changed that, adopting for federal courts a “plausibility” standard for evaluating the sufficiency of complaints on motions to dismiss.
Although Florida Rule of Civil Procedure 1.110 is based on and contains very similar language to Federal Rule of Civil Procedure 8, Florida courts, at least formally, still adhere to the Conley standard. But just as the Florida Supreme Court has abandoned the Frye test for determining whether expert evidence is admissible in favor of the federal Daubert standard, and is considering adopting the federal Celotex standard for determining whether summary judgment is appropriate, perhaps now is the time for the Florida courts to also adopt the Twombly standard for motions to dismiss. As this article will explain, the Florida courts should formally recognize Twombly’s plausibility test as the motion to dismiss standard because the text of rule 1.110 requires it and many Florida courts are applying the functional equivalent of it.
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Originally intended as a keynote address yet cancelled due to a global pandemic, this Article is timely in its analysis of a confluence of events across the nation that compel discussion of bioethics in a broad sense, as a lens through which to work toward social justice in America, further emphasizing important health inequities in America today. This Article examines disparities, first, by discussing the current social upheavals and their impact in America. Next, it explores one regulatory move that has almost been lost in the midst of a myriad of other pressing issues: the Trump administration’s claim of a clash of civil rights regarding transgender access to health care. Finally, this Article urges those at the intersection of law, medicine, and bioethics to do what they can to lessen the impact of recent events on vulnerable populations. It stresses how the current lack of care, and even outright cruelty rendering a variety of people susceptible to early death, illustrates why there must be more attention paid to social justice in the United States.
While bioethics scholars and advocates have traditionally focused on individual rights, such as human-subject research and gene editing, some have recently begun to apply social justice principles to address community wide issues such as access to healthcare. Organizations, such as The Center for Practical Bioethics, have been successful at addressing community wide bioethical concerns, especially as it relates to healthcare. Similarly, community lawyering has focused on empowering poor or oppressed groups to create social change, build power, and establish leadership within communities. These efforts are largely grassroots mobilization though townhall meetings, door knocking, and face-to-face meetings. Community lawyers engage in a wide range of practices, including workers’ rights, immigration, children’s rights, public benefits, environmental rights, community economic development, and intellectual property. Community lawyers often partner with local groups and organizations to maximize their impact. As such, community lawyers and bioethics groups could maximize their impact on community bioethics concerns by partnering together. But who should community lawyers partner with and what are the drawbacks of the partnership? Community lawyers should partner with groups which target specific bioethics concerns at issue in their community including local hospitals and medical clinics. However, partnering with hospitals and medical clinics will create unique issues which community lawyers will have to address. Common issues, such as maintaining sustained community involvement, will not be the only issues community lawyers face when partnering with hospitals and clinics. Potential conflicts of interest and concerns over privacy and confidentiality are unique issues community lawyers and bioethics organizations may face during their partnership. Nevertheless, finding a way to overcome these challenges to serve their community’s needs will have a monumental impact.
This Article asserts that the Florida Board of Bar Examiners violates the Americans with Disabilities Act (ADA) by focusing its mental health inquiry solely on the disability status of applicants in Question 25 of the Florida Bar Application. It asks, “Within the past 5 years, have you been treated for, or experienced a recurrence of, schizophrenia or any other psychotic disorder, a bipolar disorder, or major depressive disorder, that has impaired or could impair your ability to practice law?” If an applicant answers this affirmatively, that imposes an automatic subsequent request for information and potential investigation regardless of the extent to which such a disorder has resulted in problematic conduct. Accordingly, Question 25 is overly broad, is unrelated to protecting the public and safeguarding the judicial system, and thus discriminates against applicants with particular mental disorders by subjecting them to additional burdens solely because of their disability status. This Article offers a simple solution: use a set of conduct-focused mental health disclosure questions that is authorized by the Department of Justice as ADA compliant.
The United States Department of Housing and Urban Development’s (HUD) homeless definition excludes most of those living in doubled-up situations. Living doubled-up means the person or family is living in another’s home. This Article argues that HUD’s interpretation of the HEARTH Act’s definition of homeless is incorrect based on legislative history and modern understandings of homelessness. The federal response to homelessness has historically evolved in response to crises. In the 1980s and late 2000s, the country faced national economic and housing crises, prompting the government to address national homelessness. While the understanding of homelessness in the 1980s was driven by healthcare disparities, the 2009 housing crisis forced the federal response to evolve to address homelessness as the complex economic and social issue it is. In light of this evolution in federal understandings of homelessness and the similarities between the doubled-up and those in shelters, this Article argues that HUD wrongfully excludes most of the doubled-up and should therefore amend its definition to include them.
Restorative justice has become an increasingly popular topic in the national conversation. No longer just a niche legal concept, restorative justice has gained traction in a variety of contexts. Importantly, restorative justice has emerged as a model that could remedy some of the problems associated with the traditional criminal justice model in the United States: one of the world’s highest incarceration rates, family disruption and loss of civil rights due to brushes with the law, and a culture that is often motivated by fear and bias to put people behind bars.
In a Comment I wrote as a law student, which Stetson Law Review published in 2018, I explored restorative justice and other alternative models that different countries have used to administer justice following mass atrocities, when prosecuting in international tribunals was not feasible. The international legal system could not withstand the high volume of cases that needed to be prosecuted after the Rwandan genocide, Apartheid, and other horrific events, so these countries turned to alternative models to bring justice and build peace in their communities.
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What do appellate judges cite? Lawyers have hunches, but this study, which tallies more than 13,000 citations from three different appellate courts (including the U.S. Supreme Court), transforms those hunches into concrete data—with some twists and curiosities along the way. Unlike previous studies that focused on just one type of authority, this study considers it all. The results reveal courts’ citation preferences for binding precedent (including the age of cited cases), persuasive precedent, codified law, secondary sources (including a topical breakdown of law-review articles), and nontraditional sources such as books and websites. Some of the statistics challenge assumptions. Readers will see, for example, textualist jurists ignoring dictionaries and citing legislative history. And the results are sprinkled with oddities, from an operatic libretto to a 16th-century Elizabethan statute. The Article concludes with a statistical snapshot of the typical U.S. Supreme Court opinion (majority and dissent) and the typical state court-of-appeals opinion.
The Executive Branch is resurgent. Recently, the Supreme Court held in Lucia v. Sec. & Exch. Comm’n that Administrative Law Judges (“ALJs”) in the SEC are inferior officers under the Appointments Clause of the Constitution. In doing so, the Court has called into question the removal protections of thousands of inferior officers in the Executive Branch. Veterans Law Judges (“VLJs”), administrative decision-makers within the Department of Veterans Affairs, are likely inferior officers and share the same statutory removal protection as ALJs. History illustrates the perils of greater executive oversight over administrative decision-makers, perils manifesting again today. Amidst calls to “burn down the administrative state,” Lucia and related case law threaten the decisional independence of VLJs and the integrity of a beleaguered veterans benefits appeals system. Accordingly, Congress should vest the powers to appoint and remove VLJs in the “Courts of Law.” Doing so would cure the constitutional defect in their current protection from removal while insulating them from extrajudicial influences. Specifically, Congress should place VLJs under the supervision of the United States Court of Appeals for Veterans Claims (CAVC) and, in turn, place CAVC under the supervision of an Article III court. CAVC is in the best position to supervise VLJs, and placing CAVC under Article III supervision would remove VLJs from the executive chain of command. Not without its own challenges, this hybrid model of supervision is the ideal solution to the dilemma posed by Lucia.