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Solving The Procedural Puzzles of The Texas Heartbeat Act and Its Imitators: New York Times V. Sullivan as Historical Analogue
No full textThe Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive private enforcement mechanism to other disfavored-but-protected activities, seeking to impose private civil liability.
This Article—the third in a series unpacking the procedural puzzles of S.B. 8 and its imitators—considers the historical analogue of New York Times v. Sullivan, the Court’s foundational modern free speech case. New York Times arose out of a southern campaign to use state defamation law and private civil litigation to silence media outlets from reporting on Jim Crow and the Civil Rights Movement. That southern litigation campaign and S.B. 8 supporters shared a goal—deter locally unpopular but constitutionally protected activity through threat of hundreds of lawsuits and devastating civil liability and monetary exposure. But the defendants in New York Times could not and did not go to federal court ahead of any private lawsuit or seek to functionally enjoin the state’s trial courts. The Times litigated the First Amendment defensively, with successful review to the Supreme Court of the United States. Contrary to the views and concerns of critics of S.B. 8 and new copycats, rights holders can follow the same process to challenge the substantive validity of privately enforced laws. The history of New York Times shows the way
Put Your Hands Up, and Step Away from the Scrutiny: Lowering the Standard of Review for Large-Capacity Magazine Legislation
Get PDFThis comment addresses the Ninth Circuit’s decision to apply strict scrutiny to a ban on large-capacity magazines in Duncan v. Becerra. Since its construction, the Second Amendment has afforded states the ability to regulate firearms in their respective jurisdictions. However, absent Supreme Court precedent designating a guiding standard of judicial review, American courts have come to a consensus that intermediate scrutiny is appropriate when a gun regulation does not impose a severe burden on the core protection guaranteed by the Second Amendment. Inconsistent with this approach, the Ninth Circuit used strict scrutiny to strike California legislation that regulated the possession of large-capacity magazines. Is applying the highest and most stringent standard of judicial review with a presumption of unconstitutionality to a ban on weapons capable of killing ten people in a matter of seconds consistent with the limitations on the scope of the Second Amendment in District of Columbia v. Heller? In light of legal precedent, the answer is likely no. Consequently, the use of strict scrutiny on such legislation prevents states from mitigating gun violence aided by large-capacity magazines in their communities
Global Health, Limitation of Rights and the Digital World
No full textAna Cristina Gallego Hernández will be working on her research Global health, limitation of rights and the digital world”.https://ecollections.law.fiu.edu/visiting-researcher-profiles/1040/thumbnail.jp
Accommodating Access to Property: Land Restitution and Formalization in Colombia
No full texthttps://ecollections.law.fiu.edu/faculty_books/1302/thumbnail.jp
“Are We Just Going to Sit Back and Wait for ‘Regulatory Roller Coasters’ to Derail? Balancing Public Policy vs. FET Violations in Investment-Arbitration”
No full textThe Need for Social Support from Law Schools during the Era of Social Distancing
Get PDFLaw students have been faced with unparalleled stress during the syndemic. They must cope with being students during the COVID-19 pandemic but also must deal with stress related to social and political unrest. This essay recommends that law schools apply social support theory in developing interventions to effectively address the needs of law students now and in the future. Social support theory focuses on the value and benefits one receives from positive interpersonal relationships. These positive relationships impact both mental and physical health and promote beneficial short and long-term overall health. However, not all supports are the same, and social support theory can inform law schools on how to properly deploy support to students. There are four categories of social support under this theory: emotional, instrumental, informational, and appraisal support. Emotional support includes offering comfort and empathy. Instrumental support entails providing someone with tangible forms of support, such as money or equipment. Informational support is educating or advising someone. Appraisal support is assisting in self-evaluation, such as by providing feedback. Law schools typically provide informational and appraisal support. However, with students living in a world where outside support may be limited due to social distancing, law schools must be prepared to enhance their offerings to students by providing all forms of support. Law schools must also be aware that there is a difference between perceived support and received support. Perceived support is based on one’s expectation of receiving support when needed, while received support is related to the actual delivery of support at the time it is needed. Perceived support is most positively associated with beneficial health outcomes. Health outcomes are more variable in relation to received support, in some cases even negative. This perceived support is especially important during a pandemic because it may improve student health outcomes, including potentially reducing mortality. To be effective in promoting wellbeing through the provision of social support, law schools cannot simply focus on the efficient delivery of essential instruction but rather must foster the expectation among its law students that it will provide all necessary forms of support
Pushing New Frontiers: Extending Neil to Peremptory Challenges Based on Religious Affiliations
Get PDFToday, when it comes to peremptory challenges during jury selection in Florida, it is impermissible to strike a venireperson on the basis of their race, ethnicity,or gender. However, as recent as January 2020, the Florida Supreme Court has declined to adjudge whether it is also impermissible to strike a venireperson on the basis of their religious affiliation. Thiscomment will address the aspect of religion and its impact on persons sitting in judgment against others generally and whether religious affiliation qualifies as a valid ground for a peremptory challenge as both the Florida and federal standards for disqualifications are silent as to religious based peremptory challenges. Particularly, this comment proposes that the Florida Supreme Court should extend its Neil/Slappyline of cases to bar peremptory challenges on the basis of religious affiliation but not religious belief. Religious affiliation, which is defined as a distinct, socially recognized group of citizens, is distinct from religious belief, which is defined as a subscription to a set of beliefs and convictions. Stemming from this difference, the comment argues that striking a juror for religious affiliation violates Article 1, § 16 of the Florida Constitution because religious affiliation is not reflective of a potential juror’s beliefs, attitudes, biases, or competency
Should the Government Have the Unrestricted Power To Dismiss Meritorious Qui Tam Actions Brought Under the False Claims Act?: A Closer Look at Why the Government Should Not be Held to a Judicially Imposed Standard
Get PDFThe False Claims Act was originally enacted during the Civil War as a result of concerns that the Union Army would attempt to defraud the Government. Since then, the False Claims Act has evolved and grown into an extremely useful tool that allows individuals to bring civil actions for various reasons on behalf of the United States Government. Under the False Claims Act, an individual may bring acivil action, often referred to as a qui tam action, on behalf of the United States Government for violations of the False Claims Act. After an individual brings this type of action, the Government may then decide whether to intervene as a party. Additionally, the Government has the right to decide whether to move to dismiss the action. As a result of the development of the False Claims Act and individuals’ bringing various qui tam actions, however, federal circuits have developed conflicting interpretations of what the appropriate standard should be when determining whether to grant a motion to dismiss filed by the Government. Multiple circuits, including the Ninth and Seventh circuits, have imposed standards that the Government must meet before obtaining a dismissal. In contrast, the D.C. Circuit has explained that the Government should not be required to meet any standard because the statute itself does not impose any standard. The Government should not be held to a judicially imposed standard when it decides to move to dismiss a qui tam action brought on its behalf