This Article addresses the current debate over whether criminal corporate misconduct can be better managed by more corporate regulation, specifically placing more regulatory focus on personal, individual liability of the directors and officers of these corporations. The Author brings to the surface the most significant issues causing this debate, namely the standard procedural and substantive hurdles on which potential plaintiffs-usually shareholders-stumble over in their attempt to hold directors and officers liable for breaching fiduciary duties. Corporate laws are first addressed, with the Author illustrating how precedent has led to little to no individual liability for directors, especially outside directors. Securities laws are next examined, with no substantial difference found. The Author includes the findings of a study indicating that during the twenty-five-year period examined, no cases held the directors themselves personally liable under securities actions. After noting a few additional situations in which directors see very little risk of personal liability, the Author addresses, and discounts, the leading arguments for heavier corporate regulation by means of individual liability. In addressing each argument, the Author points out-as discussed in detail in Part I of the Article-that current corporate regulation has essentially eliminated individual liability for directors. The Author notes that if higher legal sanctions are placed on directors and officers, corporations will still almost always foot the bill as a result of their insurance and indemnification provisions. The Author concludes by opining that the real issue may well be that the corporate and securities laws themselves are insufficient to support such regulation.
This Article explores the potential implications of Citizens United v. Federal Election Commission for corporate criminal liability and corporate procedural rights. By treating corporations as natural persons, Citizens United reinforces the legitimacy of criminal punishment for corporate misconduct. At the same time, it provides grounds for eliminating some of the harsher aspects of that punishment, such as strict liability and “death penalty” sanctions. Citizens United‘s treatment of corporations as natural persons may also call for expanding corporate Fourth and Fifth Amendment rights. Finally, this Article speculates how these changes in corporate law might modify criminal law and criminal procedure as it applies to humans.
The decision of the United States Supreme Court in Citizens United v. Federal Election Commission, while dealing with the issues of the First Amendment and federal campaign finance, affirmed previous case law that characterized corporations as legal persons. While this case has great importance in the context of constitutional law and federal election law, the arguments and analysis presented may also apply to corporate criminal liability. This Article looks at Citizens United as well as a recent Tennessee Attorney General (TAG) opinion to explore their potential effect on the characterization of corporations as legal persons in the context of corporate criminal liability. The Author focuses on two potential approaches to determining corporate personhood in the context of corporate criminal liability, the potential all-or-nothing approach suggested by the Court in Citizens United versus the more nuanced approach suggested by the Stevens opinion in Citizens United and the TAG opinion. The Court’s opinion in Citizens United, a possible all-or-nothing approach, would leave little room for considering policy and theory arguments in determining that a corporation is a person in the context of corporate criminal liability. In contrast, the Stevens and TAG opinions would allow for a more flexible, and what this Author deems a potentially more desirable, approach to corporate personhood that involves consideration of theory and policy arguments in determining whether a corporation is a person for purposes of corporate criminal liability.
Criminal corporate liability is a debate that, in the United States, has primarily focused on ethical issues of accountability and the usefulness of criminal penalties. The current American debate on the topic may be benefited by a look into the development of criminal corporate liability in other countries, in particular in Ireland where the development of the legal system has been similar to that of the United States. In this Article, the Author gives a brief overview of the problem of instability that arises when attempting to use a common law basis for criminal corporate liability. The Author proceeds to outline a possible solution, the Irish Law Reform Commission’s (LRC) suggested legislative standard for corporate manslaughter liability, gross negligence, including the requirements of each element of the proposed test. The Author then moves to an overview of the array of the LRC’s proposed possible sanctions against corporations in criminal cases, which includes unlimited fines, remedial orders, community service orders, adverse publicity orders and restraining orders/injunctions. This Article proposes that taking a comparative look at the Irish development of proposed legislative standards in the world of criminal corporate liability, in particular the range of proposed potential sanctions, may add insight and alternative viewpoints to the American discussion and may be what the American system needs to refocus its own debate on the subject.
On January 25, 2010, the United States Supreme Court held in Citizens United v. Federal Election Commission that regulations preventing corporations and unions from spending general treasury funds in elections are unconstitutional under the First Amendment. This landmark decision overturned a two-decades-old precedent that had found such regulations to be reasonable restrictions when applied to for-profit corporations, because of the danger that corporate political expenditures would undermine the integrity of the political process. The Citizens United majority justified its conclusion by maintaining that the corporate identity of the speaker never justifies suppression of political speech.
While political speech receives the greatest protection because of its role in our democratic form of self-government, commercial speech has traditionally received less protection, because consumers rely on such speech to inform their purchases. As a result, political-speech regulations are given strict scrutiny, whereas commercial speech regulations are met with the less stringent standard of intermediate scrutiny. This Article argues that political speech of for-profit corporations should be treated more like commercial speech than pure political speech because due to the legally imposed obligation of for-profit corporations to maximize profits, there is a legally imposed profit motive when for-profit corporations engage in political speech that does not necessarily correlate with popular support for the ideas espoused by such speech. For these reasons, this Article argues that regulations of political speech by for-profit corporations should be treated with less exacting scrutiny when the democratically elected branches of government have determined that limiting such speech serves an important government interest.
School violence is a pervasive reality in these times. While it achieves its nadir in such widely publicized school shootings as at Columbine, Virginia Tech, and too many others, often it flies below the national radar. One common observation that runs through any meaningful analysis of this problem is that of the role of bullying. Bullying represents the most ubiquitous form of school violence. It is also the most fluid, as the line between victim and perpetrator shifts from one student to the other as former victims act out and become the latest perpetrator. In this powerful Article, the Author extensively documents the dynamic that develops between the bully and bullied and how, all too often, it ultimately manifests in more, and more horrific, violence. While state legislative efforts have sought to empower schools to prevent bullying, they are either in their infancy or incomplete. Instead, the Author argues, it is imperative that in dealing with the aftermath of these events courts permit the presentation of “battered child syndrome” as a possible justification defense for the acts of those formerly bullied children who now find themselves defendants to a criminal prosecution. The Author examines both the scientific research relating to this syndrome as well as its largely unsuccessful use in courts to date. The Author then draws apt comparisons to the more successful, yet largely similar, defense of “battered woman syndrome” and offers some novel suggestions to deal with the issues of imminence and reasonableness in justification defenses in the context of bullied child defendants.
Due to the recent economic crisis’ harmful effect on Florida properties, local government code enforcement officials have concentrated their efforts toward addressing the foreclosure crisis head-on. In order to effectively maintain and stabilize neighborhoods, local government proceedings have attempted to decrease the damaging effects caused by social and economic harm of vacant and abandoned properties contributing to the deterioration of Florida’s neighborhoods. Specifically, the growing use of quasi-judicial proceedings pursuant to Chapter 162 of the Florida Statutes has provided an efficient and timely procedure toward obtaining compliance with local government codes. The Author discusses issues such as code enforcement officers’ search of premises, fundamental and procedural due process, constitutional challenges to code enforcement proceedings, and the privatization and collection of code enforcement liens. The Author discusses in detail the development of code enforcement law by referring to Florida appellate court decisions. This Article seeks to provide legal practitioners with a better understanding of how these quasi-judicial proceedings operate and the future of the law involving local government code enforcement proceedings.
This Article analyzes the 2011 changes to Florida’s growth management legislation and the negative impact these changes present for urban sprawl in Florida. In June 2011, the legislature enacted the Community Planning Act, which makes significant changes to Florida’s previous growth management scheme. The Community Planning Act greatly reduces the State’s role in overseeing land use planning and eliminates mandatory concurrency requirements for schools, transportation, and parks and recreation. This Article argues that by making these changes, Florida’s legislature is improperly using a statute intended for long-term planning in an attempt to curb the effects of the current economic crisis, while ignoring sprawling growth’s destructive impact on Florida’s valuable resources and landscape.
This Article ultimately calls for legislative reform in the growth management arena and proposes that Florida should incentivize smart-growth techniques on a state level by limiting public funding to designated suitable-growth areas and providing incentives for developers to build in these areas. Alternatively, this Article proposes that local governments use the increased control they are granted under the Community Planning Act to discourage sprawl by retaining concurrency, creating more mixed-use development zones, and implementing form-based code.
Since the 1980s, Florida has experienced a condominium-conversion “craze,” during which developers converted huge numbers of apartment complexes to the condominium form of ownership. The resulting oversupply of condominiums is a major component in the Florida real estate market bubble and consequent economic downturn. Condominium conversions are linked to many social ills, including depleting affordable housing, increasing foreclosure rates, building degradation, increased vacancies and resulting crime, and urban blight. This Article addresses condominium conversions’ consequences and suggests that it is necessary to change Florida’s regulatory scheme to resolve many of the issues that have proliferated under the current law. This Article provides a detailed analysis of Florida legislation regulating condominium conversions, including the Roth Report and the Roth Act, and offers an in-depth comparison of several states’ condominium-conversion regulations. This Article suggests that the power to regulate condominium conversions should rest with municipalities. It further argues that amending Florida law to recognize a condominium conversion as a change in property use and a subdivision of property-not just a change in ownership-would allow local governments, those closest to the communities in question, to have greater control over conversions. Finally, the Article concludes that such changes in Florida’s regulations would resolve many of the unwanted side effects of irresponsible condominium conversion.
This Article examines the Supreme Court’s determination in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), that the Florida Supreme Court’s upholding of Florida’s Beach and Shore Preservation Act did not constitute a “taking” of a landowner’s property, which would require just compensation under the Fifth Amendment of the United States Constitution. The Article assumes, as set forth by Justice Scalia’s plurality, that a judicial takings doctrine exists. Employing the hypothetical proposed by Chief Justice Roberts, this Article examines the various legal avenues, procedural and otherwise, available to a landowner aggrieved by a judicial “taking.”
The Article initially addresses an aggrieved landowner’s options for recourse in state court: moving to rehear the Florida Supreme Court decision or filing an entirely new action in a local circuit court. Given the unlikelihood that lower state courts would overturn a Florida Supreme Court decision and the ease with which the Florida Supreme Court could deny a motion to rehear, the Author notes that the state-court avenue is filled with procedural hurdles likely to leave the landowner without relief.
The Article then discusses how the same hypothetical would unfold in the federal courts when a landowner asserts that the Florida Supreme Court decision worked as a taking. The Article details the federalism issue at play, concluding that the current doctrine would actually bar the aggrieved landowner from seeking relief in federal court but would allow similarly situated landowners to file their own claims. The Article also notes the abstention and immunity obstacles that the similarly situated landowners would face in their claims. Even though a landowner’s chances of obtaining relief are slightly better in the federal court system, the Article concludes with a plea to the United States Supreme Court for guidance regarding this complicated judicial takings doctrine.