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Florida’s Judicial Ethics Rules: History, Text, and Use
Get PDFA handy summary of Florida’s federal and state judicial ethics codes does not exist. As a result, Florida attorneys and judges often must invest considerable time and effort when a question of judicial ethics arises. To assist such queries, this article provides a comprehensive description of both the Florida Code of Judicial Conduct and the Code of Conduct for United States Judges
Hiding in Plain Language: A Solution to the Pandemic Riddle of a Suspended Grand Jury, an Expiring Statute of Limitations, and the Fifth Amendment
Get PDFUnder the statute of limitations applicable to most federal crimes, 18 U.S.C. § 3282(a), “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” That long-standing, generally uncontroversial procedural statute was thrust into the spotlight in 2020, when courts, prosecutors, and criminal defendants confronted an unprecedented and extraordinary scenario. In response to the COVID-19 pandemic, many federal district courts suspended grand juries to prevent the spread of the highly contagious life-threatening virus through group congregation. Indeed, to combat the rampant and unabating COVID-19 outbreak in Florida, the District Court for the Southern District of Florida suspended grand juries from March 26, 2020, until November 17, 2020, creating a nearly eight-month period during which prosecutors could not obtain indictments. But, under the Fifth Amendment to the United States Constitution, criminal defendants have the right to be prosecuted by indictment. Thus, during the grand jury suspension, the five-year statute of limitations applicable to most federal crimes was expiring on uncharged criminal conduct that ended in 2015 at a time when prosecutors could not comply with the Fifth Amendment. Despite being alerted of this constitutional issue, Congress did not enact legislation giving either the Chief Judge of the United States Supreme Court or the Chief Judges of the United States District Courts authority to suspend statutes of limitations during national emergencies, such as the COVID-19 pandemic, that affect the functioning of the courts. The combination of that judicial decision to suspend grand juries and that legislative decision not to suspend statutes of limitations posed a pandemic riddle: how can prosecutors comply with both the statutes of limitations and the Fifth Amendment when there are no grand juries? This Article examines the text of 18 U.S.C. § 3282(a), Federal Rule of Criminal Procedure 48(a), and 18 U.S.C. §§ 3288 and 3289; the purposes of statutes of limitations and the Fifth Amendment right to prosecution by indictment; and the related legislative history. Based on that examination, this Article suggests that, for most federal crimes, when defendants assert their Fifth Amendment right to prosecution by indictment during a pandemic (or other national emergency) that suspended grand juries and the statute of limitations on their alleged crimes is expiring, prosecutors can uphold that constitutional right and that statutory privilege as well as the public interest in seeing lawbreakers brought to justice by: (1) filing an information to toll the statute of limitations under 18 U.S.C. § 3282(a); (2) dismissing that information without prejudice under Federal Rule of Criminal Procedure 48(a) if the defendant does not waive his right to prosecution by indictment; and (3) obtaining a timely indictment within six months of the resumption of grand juries under the savings clauses in 18 U.S.C. §§ 3288 and 3289 for re-prosecutions after the dismissal of a timely filed information. This Article concludes that there already is a mechanism in the federal statute of limitations appliable to most federal crimes that allows prosecutors to constitutionally preserve criminal charges when a national emergency prevents grand juries from finding indictments
Three Kinds of Fault: Understanding the Purpose and Function of Causation in Tort Law
Get PDFCausation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate.
In no area of the law is causation as foundational and omni- present as in tort law, and in no sphere within tort law is it more prevalent than in its dominant cause of action, negligence. Unsurprisingly then, the causation requirement in tort law, and in negligence, has received a great deal of attention and analysis by both courts and commentators. Nevertheless, there remains a striking lack of consensus regarding the causation requirement, ranging from disagreement about the basic rationale for its existence as a part of the negligence claim, to the more specific details of its doctrinal organization and articulation.
This Article contributes to this ongoing discussion by offering an account of the causation requirement in negligence that places at its core the role that requiring causation plays in seeking to restrict the formal liability generated by the negligence tort to only those defendants who are deemed to be genuinely socially responsible for the harm suffered by the plaintiff. On this account, causation exists as part of the prima facie case for negligence, and in tort law more generally, as a means of ensuring that all liable defendants possess a particular kind of fault with respect to the injury suffered by the plaintiff.
In developing this understanding of causation in negligence, the Article identifies three different kinds of fault that a defendant might have regarding a given harm, demonstrates how a workable system of injury compensation could exist that requires only one, and explains how and why the causation requirement operates to ensure that negligence liability is conditioned upon the presence of all three. Moreover, the Article describes how the long-standing doctrinal features of the causation requirement, including its best-known exceptions, can best be understood as serving this underlying policy purpose. Additionally, suggestions for improving the effectiveness of causation doctrine that follow from this analysis are identified and discussed
Highly Automated Vehicles & Discrimination against Low-Income Persons
Get PDFLaw reform in the United States often reflects a structural bias that advances narrow business interests without addressing broader public interest concerns.\u27 This bias may appear by omitting protective language in laws or regulations which address a subject matter area, such as permitting the testing of highly automated vehicles ( HA Vs ) on public roads, while omitting a requirement for a reasonable level of insurance as a condition to obtain a testing permit.2 This Article explores certain social and economic justice implications of laws and regulations governing the design, testing, manufacture, and deployment of HA Vs which might advance a business interest without taking account of the public interest. This Article contrasts the steps that might be taken to ensure the economic well-being of low-income persons with the current state of HAV regulation. 3 This Article recommends steps to correct some of this bias
Don\u27t Let the Digital Tail Wag the Transformation Dog: A Digital Transformation Roadmap for Corporate Counsel
Get PDFDue in part to the COVID-19 pandemic, enhancements in technology, as well as shifts in the macroeconomic and socioeconomic dynamics of globalization, Digital Transformation (DT) has become an enterprise-wide imperative for most multinational companies (MNCs). As a result, legal departments are being challenged to embrace enterprise DT and start their own departmental DT journeys. Despite these trends, there is little scholarship and research about how MNC legal departments are addressing the DT challenge. How are General Counsel (GCs) currently approaching DT? Is what they are doing effective and value-accretive? And importantly, how should GCs approach DT to best generate value?
This article attempts to fill the literature gap. Based on interviews of 25 GCs and Chief Digital Officers of S&P 500 MNCs along with the authors\u27 professional experience and secondary research, we explore how legal departments are responding to and approaching DT. We identify a Three-Phased Digital Maturity Framework that maps the typical MNC legal department DT trajectory. We argue that this trajectory is suboptimal because it emphasizes technology at the expense of the foundational, non-technological elements of DT that are critical for success. Too often, GCs appear to let the digital tail of DT wag the transformational dog. The legal department itself must be fully transformed before the digital elements can add full value. By failing to transform the non-digital foundations of their departments in collaboration with the business before they introduce new technologies, GCs are leaving the most difficult aspects of DT-the organizational and structural, behavioral, and cultural changes-for last. This post-hoc approach (that leaves client-centricity and change management last) is disruptive, adds unnecessary cost, and threatens the credibility, viability, and timing of the entire DT effort on a go-forward.
As an alternative to this typical Three-Phased approach, we articulate a Best Practice 5-Step Model for how GCs should approach DT. Our approach is distinctive in that technology is only considered and applied after the service delivery model has been designed and processes have been optimized in accordance with the broader strategic and organizational contexts of both the legal department and the MNC itself. Moreover, ours is iterative. Our approach is also distinct in that throughout this process, change management principles are thoughtfully and consistently applied in each step. Contrary to standard depictions, we contend that if deployed correctly, DT can significantly transform how a legal department operates and can enable legal departments to add value in ways that go beyond generating efficiencies, reducing costs, and increasing speed-to-market. Our model provides a roadmap to help GCs better execute DT and leverage DT-generated data and insights, moving the legal department away from its standard depiction as a cost center to that of a revenue generator and value creator that is seamlessly integrated with the rest of the MNC.
In addition to filling some of the gaps in the literature, this article provides a vision that has broad applicability beyond the MNC legal department context and can be used as a model for law firms and other legal services providers to harness DT in their own contexts, to keep pace with-and better serve-their digitally transforming client base
“Officer-Involved Shootings”: How the Exonerative Tense of Media Accounts Distorts Reality
Get PDFIn “Officer-Involved Shootings”: How the Exonerative Tense of Media Accounts Distorts Reality, the author examines how the use of passive language absolves officers from public and media accountability after a shooting. This Article reports the findings of a first-of-its-kind study designed to measure how the use of the phrase “officer-involved shooting” affects public perceptions of police behavior justifications
Crime and Punishment: An Empirical Study of the Effects of Racial Bias on Capital Sentencing Decisions
Get PDFRacism has left an indelible stain on American history and remains a powerful social force that continues to shape crime and punishment in the contemporary United States. In this article, I discuss the socio-legal construction of race, explore how racism infected American culture, and trace the racist history of capital punishment from the Colonial Era to the present. After framing the death penalty in cultural and historical context, I report original empirical results from one of the largest studies (n = 3,284) of mock juror capital sentencing decisions published to date. My results show that mock jurors who self reported racial biases were 8.8% more likely to pass the death qualification and were 18.3% to 18.4% more likely to sentence a Black defendant to death than a White defendant with all other factors held constant. Death qualifying the mock jury increased the probability of empaneling one or more of these racially biased mock jurors by 8.4%. After reviewing these results in the context of previous research and Supreme Court jurisprudence, I argue that death qualifying a capital jury violates an African American defendant’s Sixth Amendment right to an impartial jury because the death qualification increases the likelihood of empaneling racially biased, partial jurors. Finally, I argue that voir dire fails to provide an adequate safeguard to this threat, argue that the right to inquire into juror racial biases during voir dire should apply more broadly, and make recommendations to improve current voir dire practices