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Financial Abuse of the Elderly in Florida: The Current Landscape and Additional Steps for a State With a Large Elderly Population
No full textAn overview of Florida’s statutory punishments preventing the Financial Abuse of the Elderly
The Interchangeable-Part Structure Of Food And Drug Law
Full text linkThis Article demonstrates that nested tiers of interchangeable parts serve as the foundation for the regulatory programs administered by the U.S. Food and Drug Administration. Core interchangeable parts used in FDA-administered programs include product categories, prohibitions on adulteration and misbranding, agency-registration requirements, current good manufacturing practices, product standards, marketing authorization requirements, postmarket requirements, and user fees. In each of these areas, Congress or the FDA has engaged in interchangeable-part lawmaking (IPL). IPL occurs when a government takes a portion of its law in one subject area and uses it as a model for its own law in another subject area. Some combination of these interchangeable parts can be found in the regulatory program for each product category regulated by the FDA. This includes food and food-adjacent products (food, food additives, and dietary supplements), medical products (drugs, animal drugs, medical devices, biologics, combination products, and human cells, tissues, and cellular and tissue-based products), and other products (cosmetics, electronic products, and tobacco products). This interchangeable-part structure provides a unifying perspective on the wide array of disparate regulatory programs administered by the FDA. The Article concludes with three brief observations about the analytical value of the interchangeable-part framework presented here. First, it suggests that IPL both explains the structure of recent changes to the statutes administered by the FDA and provides insight into the likely form of future changes to those statutes. Second, it suggests that IPL may provide a useful perspective on statutes administered by other federal agencies, such as the Environmental Protection Agency and the United States Department of Agriculture. Third, it suggests that IPL may provide similar insights into the regulatory programs of U.S. states and of foreign countries
Free Movement Rights and the American City
No full textAmerican cities are facing an inflection point. Widespread dissatisfaction with urban planning outcomes is making land use and transportation policies (such as congestion pricing) a mainstream topic of debate. Suburban sprawl and housing shortages are moving urban populations into the periphery, commuting times (and associated mental health problems) are increasing, and pedestrian and cyclist deaths caused by vehicles are at all-time highs. American cities that were largely planned and built in the twentieth century based on assumptions that we now know are flawed are not meeting the needs of their residents, and urban planners are making changes to reshape urban life as we know it. On one end of the spectrum, cities are embracing density by designing for walkable and bikeable communities that prioritize a diversity of transportation modalities. On the other end of the spectrum are cities that embrace ‘motonormativity’ and are enacting policies to facilitate speed and vehicular mobility.
The state or municipal government’s ability to regulate land use and design streets is a well-established police power, often considered in relation to private property rights. Much less understood are the individual rights that are implicated when a city uses its police power to limit or eliminate movement within a city. Collectively referred to in this Article as ‘free movement rights,’ these rights act as a safeguard against oppressive urban planning decisions. Nonetheless, movement rights have not been brought together and studied as such, nor have they been conceptualized as a tool to promote or push back against ill-conceived city design.
This Article is the first to comprehensively bring the Constitution’s free movement rights together in the context of urban planning in order to understand the individual’s rights to move about the urban environment. Four such rights are identified and explored: 1) the right to interstate travel; 2) the right to intrastate local travel; 3) the right to locomotion; and 4) the right to public assembly and expression. While much has been written about some of these rights in other contexts, little is known about the rights they confer on an individual’s urban mobility. This Article explores the contours of these rights, and, for the first time, draws conclusions regarding the outer limits of urban planning in the face of free movement rights.
In broad terms, the Article posits, first, that the collective of movement rights guarantees an individual’s right to move about the urban environment but does not guarantee the individual’s right to move about using their preferred transportation modality. Second, while bans on vehicular, pedestrian, or cyclist travel in certain areas or at certain times may be justified for safety or general welfare reasons, city-wide bans would likely represent an overextension of state power relative to movement rights. Third, given the increased awareness of negative outcomes created by motonormativity, as well as the fundamental and traditional need to be able to walk or move around affordably, cities likely have more leeway to restrict vehicular travel.
This Article unfolds in six sections. Following the introduction in Section I, Section II explores the government power to regulate land use, street design, and transportation networks. In Section III, the Article juxtaposes dueling visions of the American city. On one end of the spectrum are cities moving away from motonormativity, and on the other end of the spectrum are cities doubling down on car dependency. Section IV identifies and analyzes the collective of free movement rights and civil liberties that counteract the government’s broad powers to use urban planning to limit individual movement within the city. Section V draws out the implications of these movement rights, defining broadly how far cities can go in limiting individual transportation choices, and how individuals may assert their movement rights to shape the future of American cities. Section VI concludes with a roadmap for future research and previews the application of free movement rights to contemporary urban planning debates such as congestion pricing, 15-minute cities, the right to walk to school, and the legal possibility of a car-free city
Nevada’s Blockchain Gamble: Can A State Embracing Web3 Technology Lead Probate Courts Into The Digital Age?
No full textProbate stands as a bastion of legal formalism, seemingly resistant to the transformative currents of digital innovation that have swept through other domains of American law. While financial transactions, real property conveyances, and contract execution have increasingly begun exploring the use of Web3 technologies such as blockchain and smart contracts, estate and probate law remain tethered to paper-based procedures and rigid execution requirements. Nevada was the first state to provide legal support for Web3 technology, amending its Uniform Electronic Transactions Act statutes in 2017 to recognize blockchain-based transactions as valid and judicially enforceable. Yet despite this progressive legislative framework, the state’s estate and probate laws remain unchanged. What reforms are required to extend this legal recognition of blockchain to testamentary instruments and probate administration? To explore this, I begin in Part I by examining Nevada’s existing statutory framework for traditional paper wills, electronic wills, and probate administration, identifying where these laws diverge from the state’s more progressive legislation governing blockchain-based transactions. In Part II, I introduce the concept of a blockchain will, explain its technical functionality, and discuss how such instruments can be amended, revoked, or rendered obsolete. I then propose specific legislative reforms that could allow blockchain wills to serve as legally recognized alternatives to traditional paper wills, including the creation of a state-managed blockchain will registry that would provide the procedural infrastructure for securely filing, validating, and preserving blockchain wills. To illustrate how these proposals might operate in practice, hypothetical examples modeling blockchain-based testamentary execution and probate are included. Finally, I analyze the policy considerations both for and against reform, examining the legal barriers that must be addressed and the potential benefits this technology could bring to probate courts
Policy and Poppycock in Proximate Cause Cases A/K/A Scope of Liability and Starting to Make Sense
Full text linkStudying proximate cause is like trying to decode mumbo jumbo. Courts continue to use words like direct, remote, natural and probable, foreseeable, hindsight, and intervening and superseding causes, and they make them sound like tests. They make them sound like law. Furthermore, as one test is debunked and another appears, courts continue to apply the debunked tests. They just pile on a new one as well. Then, they calm themselves and say that proximate cause is all a matter of policy. After all, Leon Green said that; William Prosser said that. It must be true. But courts fail to ever articulate any policy other than that liability cannot be unlimited. That statement is a mere truism not a guiding light for decision in particular cases. There are broad policies of tort law: deterrence, compensation of victims, proper allocation of resources, predictability, and legislative will. They are meaningful in determining whether a court should hold that a defendant does not owe a duty to a class of plaintiffs or to protect against a broad category of injury. That is, those grand policies are triggered and called into action when the court is articulating a rule applicable to future cases. The Third Restatement of Torts: Liability for Physical and Emotional Harm contemplates the possibility of broad policy-based exceptions to the general duty to exercise reasonable care based on policy or principle. But those tort law policies are meaningless in particular discrete cases. Deciding whether someone should or should not be liable on the specific facts of a case does not involve grand concepts; it involves applying common sense and fairness. A scope of liability decision, or what the courts still too often call proximate or legal cause, is not law. It is a nuanced decision limited to the facts before the court. And making that common-sense fairness decision does not involve policy and it does not require the expertise of a judge. It is an issue for the factfinder, often a jury of reasonable people. The Third Restatement of Torts: Liability for Physical and Emotional Harm employs a risk standard to determine scope of liability. It gives that decision to the factfinder and asks them to consider whether the risk which actually arose was within the risk or group of risks which made the defendant negligent in the first place. i.e., was the risk which arose of the same character as the risks you considered when you decided breach. That makes sense. We have known there was a problem with proximate cause for a long time—about 100 years. But we just keep going on. Herein, I argue that courts should: (1) start calling proximate cause scope of liability and stop saying proximate or legal cause; (2) stop saying scope of liability is a matter of policy; that is poppycock; (3) stop applying the mumbo jumbo, unhelpful, confusing, malleable proximate cause tests/words/jingles; (4) adopt the risk standard; (5) clearly provide that the determination of scope of liability is a question for the factfinder—it is not law; (6) recognize that the factfinder’s scope of liability decision is based on common sense and fairness; and (7) review jury decisions on scope of liability with the same deference provided to other factfinder decisions—affirm them unless they are manifestly wrong. Then, we will be in a legally better place
