STU Scholarly Works (St. Thomas University)
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How Beneficial is Florida\u27s Community Property Trust Act to the Marital Estate? A Legislative Analysis of Florida\u27s Community Property Trust Act
No full textFlorida is a migratory state, famous for its tropical climate and its generous tax laws. Now, Florida is joining Alaska, Tennessee, South Dakota, and Kentucky in offering a Community Property Trust for marital property. One of the benefits of a Community Property Trust Act (“CPTA”) is that when a spouse owning community property dies, the basis of both the deceased spouse’s and the surviving spouse’s (50%) shares of the property are adjusted to the property’s fair market value at the date of the decedent spouse’s death. This sort of tax adjustment is referred to as a “double step-up in basis,” and as long as the community property has appreciated, it results in a tax benefit for the beneficiary of the property. An analysis of Florida’s CPTA reveals that it is misleading in several ways. First, it gives estate planners the option to make the trust irrevocable; however, if a married couple were to place their homestead property in an irrevocable trust, they would lose their homestead exemption which affects the way the property is taxed. Second, if one spouse dies and the surviving spouse is a noncitizen of the United States, and the decedent left their property to the surviving non-citizen spouse, that spouse is now subject to gift taxation rates as applicable to non-citizens under the Internal Revenue Services (“IRS”) code. Lastly, this new legislation does not clearly state whether the assets used to fund the trust would be classified for tax-exempt purposes. This Comment will analyze the Florida Community Property Trust Act by closely evaluating the statute itself. Part II will offer background information on the CPTA, including definitions of essential terms. Part III, section A, will analyze the risk of providing an irrevocable trust as an option for homestead property and offer a novel solution that proposes an amendment to the CPTA to eliminate irrevocable trusts. Part III, section B, will analyze the issue of devising property to a non-citizen spouse for tax purposes and propose a tax exemption for non-citizen spouses with a community property trust. Part III, section C, will analyze the uncertainty regarding how the IRS will treat community property trusts settled in a non-community state and will recommend clarity in the law as it refers to this issue. Part IV will state the novel solutions proposed for each critique. Lastly, part V will summarize the analysis done throughout the comment and conclude
Session 1: The Death Penalty in the United States
No full textSession 1 of the 2022 Intercultural Human Rights Law Review Annual Symposium, entitled The Death Penalty in the United States
Trauma: Community of Color Exposure to The Criminal Justice System as An Adverse Childhood Experience
No full textThe reality that traumatic childhood experiences are directly linked to negative health outcomes has been known and widely recognized in public health and clinical literature for more than two decades. Adverse Childhood Experiences (“ACEs”) represent the “single greatest unaddressed public health threat facing our nation today” according to Dr. Robert Block, former President of the American Academy of Pediatrics.ACEs are traumatic events that occur in early childhood, which can range from abuse and neglect to experiences derived from household and community dysfunction, such as losing a caregiver, being incarcerated, or living with a household member suffering from mental illness. The prevailing framework for addressing the ACEs crisis has been a medical model focused on after-the-fact interventions for individual survivors, rather than a model targeted at upstream, systemic issues that directly contribute to the trauma that individuals, families, and communities collectively suffer. More recently, literature has begun to explore the connection between trauma and race, outlining how structural violence, generational poverty, and historical trauma is often suffered both at the individual and community levels, focusing particularly on the traumas of violence and discrimination experienced by Black, indigenous, and persons of color. Such work has largely focused on improving economic opportunities for trauma-stricken communities, improving the physical/built environment, and supporting the development of healthy social-cultural environments.Largely absent from the body of work on the causes and impact of childhood trauma, however, is the exploration of how the United States justice system is at the epicenter of the current childhood trauma crisis. Each childhood experience described in screening instruments, which were used over the years to identify trauma, has a direct and undeniable nexus to the justice system. This nexus is evident for the abuse survivor seeking to escape her abuser through an order of protection; for the divorcing parents in a bitter custody battle; for children who land in the foster care system when their parents are incapacitated by substance abuse disorders; for those who end up with criminal justice involvement for nonviolent offenses involving mere possession of drugs; and for the Black men and women who are sentenced to longer and more harsh sentences than their white counterparts at rates that are grossly disproportionate to the racial make-up of the overall population as well as the incidence of criminal behavior among all races.Before now there has been no concerted effort to examine the role that our criminal justice system plays in actively visiting harm on children and youth of color, who experience traumatic interactions with law enforcement officers and the judiciary at alarming rates significantly greater than those experienced by non-minority children and youth. If we as a society are committed to treating ACEs as the public health crisis that they represent, then it is incumbent upon our legal system to examine where and how it is complicit in perpetuating trauma upon children of color. Additionally, the legal system must address how it should intervene—both at the individual and structural levels—to eliminate practices that are contributing to multi-generational cycles of trauma. The legal system must affirmatively equip those with justice-system involvement to succeed and build the individual and community resilience necessary to heal those who have been stricken by system induced trauma and its life-long negative consequences.Our country is facing a racial reckoning, with the highly publicized extrajudicial police killings of countless Black men, women, and children. This reckoning underscores how policing and the criminal justice system routinely traumatize both the subjects of the direct encounter and children who witness and experience these killings who may be left fatherless or motherless as a result of a deadly encounter or subsequent incarceration. The Black community is further re-traumatized by the constant barrage of news accounts, now often accompanied by horrific video footage. Indeed, it is the responsibility of our justice system, as a major contributor to so called “social determinants of health,” to tackle this crisis directly. This piece purports to begin this intervention, starting with a focus on the criminal justice system
Toward Textual Internet Immunity
No full textInternet immunity doctrine is broken. Under Section 230 of the Communications Decency Act of 1996, online entities are absolutely immune from lawsuits related to content authored by third parties. The law has been essential to the internet’s development over the last twenty years, but it has not kept pace with the times and is now deeply flawed. Democrats demand accountability for online misinformation. Republicans decry politically motivated censorship. And Congress, President Biden, the Department of Justice, and the Federal Communications Commission all have their own plans for reform. Absent from the fray, however—until now—has been the Supreme Court, which has never issued a decision interpreting Section 230. That appears poised to change, however, following Justice Thomas’s statement in Malwarebytes v. Enigma in which he urges the Court to prune back decades of lower-court precedent to craft a more limited immunity doctrine. This Essay discusses how courts’ zealous enforcement of the early internet’s free-information ethos gave birth to an expansive immunity doctrine, warns of potential pitfalls to reform, and explores what a narrower, text-focused doctrine might mean for the tech industry
Employment Classification and Human Dignity in The Gig Economy
No full textWhat drives a business? Most simply put, profit. But to what end? Employment classification has a significant impact on a business’s profit. The two most common worker classifications recognized globally are the independent contractor and the employee. This classification determines whether the individual receives access to pay, qualifies for benefits, and gains protection from discrimination. All these factors come at a cost to an employer and result in a cut in their overall profit. In the twentieth century, employment classification has been subject to heavy litigation in a particular field: the gig economy. The gig economy, which primarily grew in the twenty-first century, provides the ability for workers to have flexible and temporary jobs. For some, the flexibility is beneficial as it allows people to work whenever and wherever they please. However, others rely on their gig economy job to make a living, and this has led workers to demand employee rights. The leading player in the rideshare gig economy is Uber, and much litigation has centered around their employees demanding more workplace rights. Under the current system, to gain more rights, workers need to be classified as employees rather than independent contractors. Consequently, Uber drivers have sued seeking reclassification as employees rather than independent contractors. Several countries around the world have already addressed this issue. Countries such as France and the United Kingdom have chosen to classify Uber drivers as employees and workers, respectively—affording them employment benefits such as vacation days, paid time off, and health benefits— while Australia and the United States are still classifying Uber drivers as independent contractors.16 Court decisions from around the world regarding Uber serve as a precedent to litigation concerning other gig economy workers\u27’ rights. This Article will analyze the employment standards of four countries: France, the United Kingdom, the United States, and Australia, and discuss each country’s judicial decisions regarding the treatment of Uber drivers as independent contractors, employees, or workers. The underlying goal of this inquiry is to assess whether human dignity is taken into account in legislative and judicial decision-making regarding worker classification since human dignity should be at the core of all work environments. Such a stance is of mutual benefit: if employers show their employees that they are valued, employees will return the gratification. Thus, for the reasons discussed below, all workers deserve to be treated according to decent standards of employment, which inter alia, would provide workers with employment benefits while retaining the employment status that encourages their flexibility
The NIL Game Plan: How The Florida Legislature Can Become Student-Athletes\u27 Ambassador of Quan
No full textThe movie Jerry Maguire follows a successful sports agent who questions the morals of his work, which leads to him being stripped of his contribution at his firm and being left with one client. Throughout the movie, Maguire struggles to build his clientele while pursuing the best interests of his only client, Rod Tidwell. Somewhere along the way, Tidwell uses the word “Quan” and leaves Maguire perplexed; “Quan? That’s your word?” Tidwell replies: “Yeah, that’s my word. You know some dudes might have the coin. But they’ll never have the Quan.” “Wha…what is that?” Maguire asks, still clearly confused. Tidwell spells it out for him: “It means love, respect, community, and the dollars, too. The entire package. The. Quan.” On June 12, 2020, Florida Governor Ron DeSantis signed into law the “Intercollegiate Athlete Compensation and Rights” Bill. The law took effect on July 1, 2021, joining multiple states throughout the country with the same enactment date. According to the preamble, Section 1006.74 of the Florida Statutes was adopted for the following purpose: “[t]he Legislature finds that intercollegiate athletics provide intercollegiate athletes with significant educational opportunities. However, participation in intercollegiate athletics should not infringe upon an intercollegiate athlete’s ability to earn compensation for his or her name, image or likeness.” The law continues by stating that the compensation earned by college athletes “must be commensurate with the market value of the authorized use of” his or her name, image or likeness (“NIL”). Commentators have speculated what exactly “market value” may mean and who enforces and calculates the value once the law becomes enacted. One legal analyst has commented that if the determination of “fair market value” were left to the National Collegiate Athletic Association (“NCAA”) or its members, it “would be vulnerable to claims of illegal price fixing under federal antitrust law.” Additionally, the college sports world has had its fair share of scandals in recent years, namely those involving accusations and ultimate findings of price fixing. With the recent controversy facing the NCAA, critics have disapproved state NIL bills as either codifying the goals of the organization (namely maintaining the “amateurism” model) or being too weak in its structure to be enforced effectively. Since this topic has become a contentious nationwide issue, the Department of Justice’s Antitrust Division has recently become involved in applying pressure to the NCAA to allow NIL compensation and making sure that any new policies are not anticompetitive, such as amounting to illegal price-fixing. There have been federal bills proposed in the House of Representatives addressing the NIL compensation issue. However, the passing of a federal NIL law that will preempt state laws is something that may not come in the near future, according to some commentators. Florida is taking advantage of the situation both with the federal government and with other states; because Florida is one of the first states in the nation with an active NIL law, “colleges in Florida may already be enjoying an advantage in the highly competitive college recruiting market.” This Comment analyzes how the Florida Legislature should create an independent commission in partnership with the Florida Board of Governors and the State Board of Education to help determine what the fair market value of a student-athlete’s NIL is, ensure compliance with the NIL law, and mitigate the potential occurrence of illegal price-fixing among the NCAA and affiliate schools. Part II will analyze recent court cases, such as the ruling of In re National Collegiate Athletic Association Athletes Grant-in-Aid Cap Antitrust Litigation, 958 F.3d 1239 (9th Cir. 2020), which found the NCAA and eleven of its thirty-two conferences liable of horizontal price-fixing, as well as recent scandals of conflicts of interest in Florida college sports. Part III analyzes the benefits of transparency in regulation and the potential conflicts of interest that can arise with related parties to an NIL contract. Part IV will propose a solution to prevent conflicts of interest from entering the realm of NIL compensation and potentially limit price-fixing. Part V will conclude with an overview of the proposed solution and how this will protect student-athletes in the realm of NIL compensation
Race & Policing in America Symposium Transcript
No full textThe symposium was moderated by Professor andré douglas pond cummings of University of Arkansas at Little Rock William H. Bowen School of Law
Regulatory Structure and the Revolving Door Phenomenon in South Korea
No full textBook: The Cambridge Handbook of Twin Peaks Financial Regulation
First proposed in 1994, the Twin Peaks model of financial system regulation employs two specialist peak regulators: one charged with the maintenance of financial system stability, and the other with market conduct and consumer protection. This volume, with contributions from over thirty scholars and senior regulators, provides an in-depth analysis of the similarities and differences in the Twin Peaks regimes that have been adopted around the world. Chapters examine the strengths and weaknesses of the model, provide lessons from Australia (the first to adopt the model), and offer a comparative look at the potential suitability of the model in leading non-Twin Peaks jurisdictions. A key resource for central bankers, public policy analysts, lawyers, economists, politicians, academics and students, this work provides readers with a comprehensive understanding of the Twin Peaks model, and a roadmap for countries considering its adoption.https://scholarship.stu.edu/faculty_book_chapters/1044/thumbnail.jp
From TikTok to Racial Violence: Anti-Blackness in The Gendered Sphere
No full textThis article proceeds in four sections. Section I begins with a brief historiography of the danger of White gendered racism to Black life; specifically, when White women falsely accuse Black men of crimes. The seriousness of this provocative history is undisputed. It has been captured as a movie adaptation of a famous novel, well documented in academic scholarship, sang in negro spiritual songs, described in countless media stories, and documented by the federal government when the accusations involved brutal retaliation-style killings. After discussing the historical underpinnings of gendered racism, Section II uses a case study of a White woman, named Amy Cooper, who falsely accused a Black man, Christian Cooper, of a crime, not only putting his life in danger, but using the privilege associated with her Whiteness as a weapon against Black freedom and equality. Her story is important, not only because of the absurdity of her actions, which we all were able to see due to social media, but because they connect the anti-Black racism of the past to our present. By taking a deep dive into the narrative of that unbelievable historical moment, I reveal her actions for what they really are – contemporary racial violence; and she for who she really is – a White woman who weaponized her race and gender, without compunction, to put an innocent Black man in harm’s way. This section also dissects her actions as a set of specific acts that you see repeated again-and again by White women who routinely call the police on Black people. I call it a White women’s anti-Black racist “playbook.” This article concludes with a brief discussion of some of the legal solutions that have been enacted to deter and punish this behavior. I use this conclusion not to say that the law can fix the very problem that it created, the stereotype of Black men as criminals and rapists, but to reveal that society can legislate away hate and racism. In other words, the Law, which more often is a problem for Black existence, has the potential to serve as a solution by empowering police departments and prosecutors to punish White women (and men) who make false accusation to the police. While punishment under these laws might, at first, seem harsh, their real value lies in the fact that they have the potential to put White people on notice of their privilege, and change the cultural narrative of White privilege in this country. Of course, it should go without saying that the only real value of these laws would be their usage by the Criminal Justice System, which seems unable to convict White people of committing crimes when the victim is Black
The Power of the Dissent and Writing The Future of Justice: Maat, Aristotle\u27s Rhetoric, and Justice Ginsburg\u27s Dissent in Kentucky v. King
No full textThis article explains why Ginsburg\u27s dissent in King is rhetorically superior to the majority opinion. It evaluates, by way of comparing and contrasting, the persuasiveness of the dissent and majority opinions in King. This article examines the opinion through the lens of Aristotle\u27s rhetorical model and the ancient tenet of Maat. It analyzes Ginsburg and Justice Alito\u27s (Alito) use of rhetorical devices that appeal to persuasion, including logos (appeal to logic), ethos (appeal to credibility), pathos (appeal to emotions), and Maat (rightness in the world). This article concludes that Ginsburg\u27s use of rhetoric has a superior appeal to fairness and justice because it is informed by Western rhetoric and the ancient tenet of Maat. This article introduces the current social climate to highlight why it is an important time to discuss the dissent and majority opinions in King. Part II defines Aristotle\u27s classical rhetoric and the ancient tenet of Maat.9 Part III discusses the role of the appellate judge and opinion writing. 10 Part IV overviews the Fourth Amendment and defines the exigent circumstance exception. Part V both analyzes the dissent and majority opinions through the frame of Aristotle\u27s rhetorical model and applies the Afrocentric comparative rhetorical tool of Maat (balance and justice in the world). 12 Part VI then concludes that Ginsburg\u27s use of rhetorical devices in the dissent was rhetorically superior to the majority opinion because it has a greater appeal to justice