Stetson Law Review

This Article analyzes the growing population of elderly prisoners and the practical and policy challenges that one must understand to impact meaningful change for this population. The rise in the elderly inmate population creates new burdens on the prison system. Prisons struggle to provide adequate healthcare, compensate for mental health issues like dementia, and simply to maintain orderly prison programs when many inmates struggle to hear, see, or walk long distances. This Article argues that prisoners are entitled to reasonable accommodations under both constitutional and American Disabilities Act provisions. Additionally, this Article points to federal policy initiatives like the compassionate release program and argues that these initiatives create substantial hurdles, therefore making it unlikely that the elderly prison population will diminish in the future.

This Article ultimately calls for practical, low-cost remedies that can be established within prisons to manage the growing number of elderly prisoners. Essentially, this Article recognizes that prison systems are created for younger inmates, with inadequate training, planning, and implementation of elderly assistance initiatives. In response, this Article takes a practical stance in asserting that resources spent on implementing programs within the prisons, to include specialized housing, telemedicine, adequate staff training, and promotion of inmate assistant programs, will have a greater effect on surging numbers of elderly inmates than compassionate release.

This Article explores how Florida courts address inverse condemnation claims involving navigable water by analyzing the traditional elements of and standing requirements for a takings claim, as well as the limitations riparian landowners face when filing such a claim. This Article navigates the procedural and substantive issues of an inverse condemnation claim emphasizing how Florida courts have excluded certain rights by deeming them a noncompensable right under common law. Much of the value colloquially associated with having waterfront property is not anchored in compensable legal rights according to Florida law. Finally, this Article demonstrates how Florida landowners’ inverse condemnation claims are dead in the water when their property is physically under navigable water since the landowners cannot satisfy the requirements necessary for an inverse condemnation claim.

The recent mortgage crisis-and the subsequent increase in property foreclosure proceedings-has left Florida’s real property law in a state of flux. Specifically, a rise in vacant or abandoned properties due to a decrease in home equity has led to a surge of municipal code violations, which affect a purchaser’s rights and duties related to a piece of real property. In light of a real estate practitioner’s duty to ascertain title and determine whether any judgments or leans exist against a seller’s real property before advising his or her client to purchase that piece of real property, these code violations have left practitioners wondering how to properly advise their clients during the purchase process.

This Article addresses numerous issues related to the treatment of code enforcement violations under existing Florida law. Specifically, it discusses whether code enforcement violations run with the land; whether homestead exemptions apply to attempts to enforce and collect code enforcement liens; how the “first in time, first in right” rule applies to duly filed and recorded code enforcement liens and mortgages that encumber the real property; what effect the Florida Supreme Court’s decision in City of Palm Bay v. Wells Fargo, N.A. should have on real property encumbered by a mortgage and code enforcement lien; whether unrecorded violations affect a current owner’s title to real property; whether code violations begin to accrue on a specific date and how long they last; whether the Due Process Clause of the Fourteenth Amendment of the United States Constitution and the Due Process Clause of Article I, Section 9, of the Florida Constitution compel notice of code enforcement proceedings to protected and interested parties beyond actual owners; and whether there should be one or more code enforcement proceedings in obtaining administrative finality. Addressing each of these open issues in turn, the Author provides a practical and workable understanding of a real estate practitioner’s duty when advising his or her client on the desirability of a real property purchase.

The known harmful effects of second-hand smoke have caused an increase in smoking regulations in Florida over the past twenty years. In 1985, the Florida Legislature enacted the Florida Clean Indoor Air Act with the purpose of expressly preempting indoor smoking regulations promulgated by Florida municipalities to the State. In recent years, the Act’s preemption clause has caused confusion as to whether the State intended to preempt only indoor smoking or both indoor and outdoor smoking regulations. This Article explores the legislative history, recent caselaw, and attorney general opinions discussing the Florida Clean Indoor Air Act’s breadth of preemption in an effort to resolve the confusion.

This Article analyzes the legal obstacles facing children conceived after the death of one or both parents. The Author focuses on problems particular to codified Florida law and proposes revisions that would enable posthumously conceived children to inherit from a deceased parent domiciled in the State. The Author proposes updates to Florida’s parentage, probate, and trust codes, which would allow a narrow provision for posthumously conceived children under the State’s intestacy statutes.

The Author advocates imposing several requirements to account for (1) a decedent’s consent regarding his or her genetic material available for posthumous conception; and (2) efficient estate administration as it relates to potential posthumous conception. The Author incorporates gender-neutral language within the proposed statutory language to ensure that all couples receive predictable outcomes for any resulting posthumously conceived children.

Because of the current financial crisis, a more effective method of regulation to deter the shortsighted behavior that led to the crisis is necessary. Such a method may lie in holding executives accountable to shareholders for a breach of fiduciary duty. Explaining the unique circumstances of the secondary mortgage market that make mandatory disclosures necessary and the relevancy of regulation of this market, this Article proposes federal legislation and discusses how it would resolve the information asymmetry problem. In addition, disclosures in the context of directorial personal liability in light of the current landscape of American corporate law are examined. In conclusion, the Article proposes a regulatory scheme based on disclosures that would unravel these complex transactions in order to promote meaningful decision-making in the boardroom while providing shareholders with an effective tool to hold directors liable if they breach their duties to the corporation.

This Article focuses on changes in campaign spending after the United States Supreme Court decision in Citizens United v. Federal Election Commission in 2010. The Author explains that the Citizens United decision paved the way for an explosion of spending by nonprofit groups that do not have to disclose their donors and for the creation of super-political action committees (super-PACs) that can take in unlimited corporate, union, and individual donations. While super-PACs must disclose their contributors, these nonprofits do not, which has created a debate about whether nonprofits engaged in political activity should also be required to disclose contributors. The Author explains how some advocate that these new campaign-finance vehicles facilitate speech, while others argue that secret spending makes the political process less transparent, thus harming American democracy. Finally, the Author describes how efforts to require disclosure have thus far been unsuccessful and forecasts that the courts will ultimately decide this issue.

This Article examines how the IRS engendered the continuing controversy over claims of misapplication of the Tax Code targeting Tea Party groups applying for tax-exempt status. By surveying the Tax Code, legislative history, and reports in light of the scandal, this Article proposes these challenges actually stem from a fundamental IRS failure-the failure to issue meaningful administrative guidance on key definitions such as social welfare and permissible election campaign activities of Section 501(c)(4) organizations. As such, this Article faults the long-term laxity of the IRS and its failure to resolve statutory ambiguities for creating conditions conducive to arbitrary enforcement and the de facto restructuring of tax-exempt organizations under Section 501(c)(4) as permissible campaign-finance vehicles. Further, this Article discusses how the United States Supreme Court contributed to the shift of utilizing Section 501(c)(4) organizations for furthering political funding goals by analyzing the Court’s decision in the landmark case, Citizens United v. Federal Election Commission. This Article foreshadows new challenges navigating laws regulating tax and campaign finance by highlighting the impact of the lingering effect of the Court’s decisions to adhere to a limited agency role in election law and to protect political free speech.

The Supreme Court’s decision in Citizens United v. Federal Election Commission sparked a widespread dialogue about the fundamental First Amendment right of free speech and the future of election spending. This Article contributes to that dialogue with a focus on how the Citizens United decision affects labor unions.

After explaining the Court’s rationale in Citizens United, the Author juxtaposes Citizens United with earlier cases concerning the First Amendment rights of labor unions. Specifically, the Article explores inconsistencies in two areas: first, labor protest rights, as to which pre-Citizens United Supreme Court decisions upheld certain speaker-based restrictions on protest tactics; and second, protections for dissenting union-represented employees. Next, the Author evaluates whether post-Citizens United First Amendment cases resolve this established tension. The Article closes by expressing concern about what these inconsistencies may mean in the future, especially in the context of two important cases from this Term’s Supreme Court docket: McCutcheon v. Federal Election Commission and Harris v. Quinn.

Protection against voter intimidation may undergo significant change in the wake of the Supreme Court’s decision in Citizens United v. Federal Election Commission. In that case, the Court greatly expanded First Amendment protections afforded to corporations. With this increased protection, corporations are emboldened to increase their efforts to persuade employees to vote for particular candidates or initiatives that may favor the corporation or those at its helm with little fear of being prosecuted for voter intimidation.

This Article explains why the current environment of voter intimidation laws is untenable. The Author discusses and then rejects that the resolution propounded by the Supreme Court in NLRB v. Gissel Packing Co., which addresses voter intimidation in the context of employee unionization, could be a workable solution to the problem when it comes to political elections. Instead, the Author proposes a solution based on the decision rendered in Kunkle v. Q-Mark, Inc.; in that case, a federal court in Ohio determined that a public policy exception to the at-will employment rule exists to permit an employee to bring a civil tort action against his or her employer for adverse employment decisions based on how the employee votes in a political election. The Author argues that recognition of the public policy tort would adequately deter employers from future voter intimidation and curtail the problems made possible by the decision in Citizens United.