STU Scholarly Works (St. Thomas University)
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The Collapsing No Damages for Delay Clause in Florida Public Construction Contracts: A Call for Legislative Change
No full textThe purpose of this comment is to provide a reasonable and persuasive argument in support of the proposition that Florida should abolish the draconian No Damages for Delay clause, as against public policy, in public construction contracts. In particular, this comment attempts to show a pervasive national trend favoring the clause\u27s non-enforceability through myriad judicial exceptions and statutory restrictions. Part I is a primer on the public construction process. It introduces the reader to each of the facets that make up the construction process: design, bidding, award, and construction. Part II argues in favor of invalidating the NDFD clause through a brief discussion of equitable principles. It pits the principle of freedom to contract against the principle of good faith and fair contracting. Part III presents an archaic NDFD clause. It shows how judicial exceptions and progressive legislation have severely weakened the clause beyond its point of elasticity. Finally, part IV presents a national survey on the eroding enforceability of the NDFD clause. This concluding section showcases what other states have done to invalidate the NDFD clause. It closes with an insightful look at the way in which the State of Washington invalidated the NDFD clause-in the hopes that Florida will soon follow its lead and adopt a similar statutory provision
Regulating the Five Steps to Death: A Study of Death Penalty Direct Appeals in the Florida Supreme Court, 1991-2000
No full textBetween 1991 and 2000 the Florida Supreme Court published at least 343 direct appeal opinions on 288 men and women sentenced to death in circuit court, Florida\u27s felony trial court. All but nineteen, 266 or 92% of the individuals, saw a conviction affirmed. One hundred seventy seven, or 61% of the individuals, also saw their death sentence affirmed while the remainder won various forms of relief, though often only temporary. This article and the accompanying appendix will examine those 288 cases, try to quantify them, and consider what they say about recent Florida death penalty jurisprudence. In a few instances, significant developments in Florida death penalty law will be discussed. The article will not discuss capital post conviction litigation except as an occasional aside.\u27 The article considers death penalty direct appeal opinions issued by the Florida Supreme Court between January 1, 1991, and December 31, 2000. The primary virtue of this approach is its simplicity. One drawback, however, is that percentages should not be read too literally. These percentages are, at best, an indication of general trends. Many decisions follow remands earlier than the period of this study. Other cases with remands late in the period of this study returned to the Florida Supreme Court with decisions after December 31, 2000. Some of those decisions are discussed in footnotes. Many times remands, especially those on sentencing issues, resulted in trial court resolutions that were not appealed. Those final actions are beyond the scope of the research of this article
Environmental Federalism in the United States and the European Union: A Harmonic Convergence
No full textIn 1788, Benjamin Franklin wrote to some European friends just after the United States Constitution was signed in Philadelphia, I send you. . . the proposed new federal Constitution for these states [i]f it succeeds, I do not see why you might not in Europe [do the same] by forming a Federal Union and one grand republic of all the different states and kingdoms; by means of a like Convention, for we had many interests to reconcile. Here, in the twenty-first century, Americans still measure their system of federalism with reference to the same document to which Franklin referred. It was not until the mid-twentieth century, however, that the European Union began its evolution in the direction of a federal system. The New World\u27s experiment in federalism is over two centuries old, while the Old World\u27s continental effort is really just beginning
The New Institutional Italian Organization: The Federalism - The Experience of Other European States and the U.S. System
No full textIn 1860 Italy turned into a nation, indeed one year later, on March, 17, the Kingdom of Italy was proclaimed under the Savoy Royal Family. However the unity of Italy was completed only in 1866, with the annexation of Veneto and definitely in 1870 with the conquest of Rome. Since then the Boot (Italy), more than any other European country, have had all the premises to become a federal state
Von Eiff v. Azicri: An Important Step in the Refinement of Grandparent Visitation Analysis
No full textThis article first examines Von Eiff\u27s legal predecessors: earlier Florida cases that defined the constitutional dimension of familial rights and first attempted to reconcile grandparent visitation with those rights. Indeed, the stage was actually set for Von Eiff by two cases that rejected constitutional challenges to the grandparent visitation statute. The first used no supporting authority. The second equated the rights of single parents with those of married parents prior to dismissing both as unsubstantial. By chance the omissions of each of these cases left precisely the logical gap, which it seems was needed to accommodate the decisions supporting parental rights that were to follow. Second, the article explores the Von Eiff opinion itself, beginning with its conceptualization of the right at stake. Although the court ultimately found the statutory provision at issue unconstitutional under the state constitution\u27s guarantee of privacy, nothing in its analysis suggests that the court believed the provision could survive a federal constitutional challenge. The article also examines the court\u27s explication of the harm standard. This is perhaps the most significant aspect of the Von Eiff decision, for by specifically articulating what harm means in the context of Florida domestic relations law the court eliminated the conceptual blurring of a best interests of the child analysis and a harm analysis. The confusion of these two concepts has infected a decade, at least, of grandparent visitation decisions in Florida and elsewhere, and, indeed, relegated grandparent visitation law to the intellectually illegitimate fringes of family law itself. This section of the article also examines the logic Von Eiff uses to support its conclusion. In this portion of its opinion the court demonstrates the logic of its position both in the broadest context of domestic relations law and in the context of human experience itself. The court notes, for example, that since an adoption creates the same \u27relationship ... for all purposes\u27 between the adopted child and the adoptive parent \u27 as would have occurred in a biological family, any attempt to condition government intervention on family status is problematic at best. A final section of the article examines the effect of the Von Eiff decision both on Florida domestic relations law and on the development of grandparent visitation law nationally
The People Drunk or the People Sober - Direct Democracy Meets the Supreme Court of Florida
No full textIn 1999 opponents of race and gender preferences in public education, public employment, and public contracting submitted to the Florida Secretary of State four petitions to end those practices in Florida. The sponsors, styling themselves as the Florida Civil Rights Initiative ( FCRI ), were led by businessman and University of California Regent Ward Connerly. The petitions were filed under the authority of Article XI, Section 3, of the Florida Constitution, which authorizes the direct proposal of constitutional amendments by the people. They were closely patterned after successful initiatives in California and Washington, where Connerly had been instrumental in securing adoption. Addressing all four petitions in a single opinion, the Supreme Court of Florida, on July 13, 2000, struck each of them from the November ballot. The Court held that each violated the requirement of the Florida Constitution that an initiative embrace but one subject. It also held that each failed to comply with a Florida statute requiring the sponsor of an initiative to provide for the ballot a clear, concise, and unambiguous explanation of the chief purpose of the measure.5 Reaction to the decision in Florida newspapers, while limited,6 was unfavorable-not because the commentators necessarily opposed preferences, but because they were distressed that the Court had taken the issue away from the voters. The excerpts betray suspicions, to say the least, that the driving force behind the Court\u27s decision was disapproval of the substance of the measures and that the Court had sidelined its professed policy, surely required by the constitution, of refusing to consider the merits of a proposed amendment. Are the suspicions justified? Is the FCRI case a textbook example of government by judiciary, or of an activist Court undertaking to deliver society from a dangerous and misguided proposal? Postponing these questions until later, this article will show that the Court\u27s opinion cannot stand up to disinterested analysis. In support of this conclusion, this article examines not only the FCRI advisory opinion, but also other opinions of the Florida Supreme Court on initiatives to amend the Constitution. It asks: Are they justified by the language of the Florida Constitution and the controlling statutes? Are they supported by logic, common sense, Florida precedents, and decisions of the courts in other jurisdictions? Does the Court provide principled explanations for its decisions? Are they based on consistently applied standards? The article concludes that, for a great many of the Court\u27s opinions, the answer to these questions has to be no. The merits of the initiatives discussed or their validity under the Constitution of the United States are not concerns of this article. Nor, with one or two exceptions, does it address the strengths and weaknesses of the initiative process in Florida. Rather, this article takes that process as it finds it and asks whether the Supreme Court has manipulated it so as to eliminate proposals seen as threats to responsible and effective government or civil liberties. The topic is usurpation
The Disenfranchisement of Federal Employee: Why the Federal Government Does not Follow the Fair Labor Standards Act
No full textThe largest employer in the nation is violating the bedrock of employment law. Although several laws govern the regulation of overtime in the federal sector, federal employees are often unaware of them. The Fair Labor Standards Act ( FLSA or Act ) regulates overtime provisions in employment in the private and public sectors. The FLSA provides for overtime to be paid at a rate of time and one-half of the employee\u27s normal hourly rate. Federal statutes regulate overtime pay with regard to federal employees. These statutes call for an overtime rate for certain employees that is less than the required time and one-half of the employee\u27s normal hourly rate. Thus, many federal employees are not receiving the time and one-half overtime pay of their normal hourly rate for hours they work in excess of forty hours a week. Instead, the federal government offers far less for overtime compared to what most of these employees may earn every hour at their normal hourly rate. In addition, the federal government offers its employees only hour for hour compensation by way of compensatory time in lieu of overtime pay. However, when state and local governments offer compensatory time in lieu of overtime, they are required to offer it at a rate of time and one-half for every hour worked. This paper will examine the FLSA to determine the legality of the federal government\u27s practice of granting overtime at a level that is less than time and one-half of the federal employee\u27s base hourly rate. Section one will follow a fictitious federal employee and her request for overtime compensation. Section two will review the history of the FLSA and the 1974 amendment. The FLSA developed a maximum number of hours that employees covered by the Act could work without being compensated by at least time and one-half of their normal hourly rate. Section three will consider the exemptions to the FLSA as they relate to the federal employee. Section four will examine how the status of an employee is determined. Section five will scrutinize the overtime policy of the federal government. Section six will deal with the inconsistency between the premium pay provisions in the federal government and the FLSA. Section seven will evaluate the regulations governing compensatory time in lieu of overtime in the federal government. Finally, section eight concludes by showing that the federal government violates the FLSA and considers the reasons for such a violation