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FSU Law Focus - 03/10/2023
Get PDFFrom the Dean: Inaugural D’Alemberte & Palmer Lecture in International Human Rights; Article by Professors and Alum Recognized as One of the Best in IP Law; Alum Ben Odom (’04);Student Profile: 3L Hayden Hurlbuthttps://ir.law.fsu.edu/fsu-law-focus/1341/thumbnail.jp
Avoiding Scandals through Tax Rulings Transparency
Get PDFIn 2014, the International Consortium of Investigative Journalists broke the LuxLeaks scandal, revealing numerous tax rulings that the press termed sweetheart deals granted to multinational companies. Many countries offer tax rulings because they provide certainty to taxpayers and the government on the tax consequences of a planned transaction. Yet, secrecy that is followed by leaks and criticism is a recurring aspect of these rulings, both in the United States and Europe. LuxLeaks, which revealed secret rulings from the small European country of Luxembourg, was international headline news. It helped trigger widespread reforms. Tax authorities, including those of European countries and the United States, now automatically share information about cross-border advance rulings with other countries\u27tax authorities. But Luxembourg\u27s tax rulings otherwise remain confidential. The United States treats a type of tax ruling, the Advance Pricing Agreement (APA), similarly: it exchanges information about APAs with other countries but does not otherwise disclose them. How transparent should tax rulings be? Secret rulings protect taxpayer confidentiality but also impose costs on various stakeholders. This Article (1) draws on the repeated scandals involving tax rulings to develop an original typology of these costs; (2) catalogues the levels of possible rulings disclosure, connecting each level with the costs it would address; and (3) examines potential arguments against rulings transparency. The Article concludes that, despite government resistance, best practices call for public disclosure of anonymized tax rulings-both letter rulings and APAs-heavily redacted, if necessary
FSU Law Focus - 08/18/2023
Get PDFFrom the Dean: Frontiers in Law and Technology Series, Generative AI for Lawyers: An Introduction; Faculty Profile: Courtney Brewer; Alum Profile: Jordan E. Goldfarb (\u2714); Student Profile: 3L Roger Matahttps://ir.law.fsu.edu/fsu-law-focus/1082/thumbnail.jp
FSU Law Focus - 09/15/2023
Get PDFFrom the Dean: FSU Law ranked sixth best law school for government law and eighteenth for best moot court (preLaw magazine); New FSU Law Merchandise Available; Alum Profile: Justin Peters (\u2717); Student Profile: 3L Bianca Devaneyhttps://ir.law.fsu.edu/fsu-law-focus/1108/thumbnail.jp
FSU Law Focus - 07/21/2023
Get PDFFrom the Dean: Preparing for the bar exam; Oxford Program Celebrates 50 Years; Alum Profile: Donald M. Hinkle (’80); Profile: Celebrating 2023 Grad Briana Bedoyahttps://ir.law.fsu.edu/fsu-law-focus/1194/thumbnail.jp
Unconstitutional Police Pretexts
Get PDFThis Article unearths the pernicious effects of pretextual policing on civil rights and democratic principles. The Fourth Amendment’s pretext doctrine has faced widespread criticism for enabling police to shield the real reasons for searches and seizures from constitutional scrutiny. In its ruling on Whren v. United States, the Supreme Court established that police actions, not their motivations, are the relevant factor in determining constitutionality of searches and seizures. As a result, police can use ostensibly legal justifications as a cover for unconstitutional conduct. This article breaks new ground arguing that pretextual policing extends beyond searches and seizures. It reveals a broader alarming phenomenon in which police use existing laws as a pretext to avoid accountability and expand the state’s carceral power.Drawing on surveys of police departments and judicial decisions, this Article traces how the police deploy pretext in new and different contexts to justify actions that would otherwise be unconstitutional. It proffers case studies from three distinct law enforcement practices to illustrate this trend. The first exposes that police pretextually claim crime victim status under laws that protect the confidentiality of victims’ identities to shield themselves from public accountability for misconduct. The second reveals police exploiting juvenile privacy laws to extend privacy protections to officers, thereby evading accountability and curtailing minors\u27 due process rights. A third case study shows how the police abuse their authority by expanding criminal statutes intended to protect pregnant people to instead police conduct during pregnancy.The Article thus brings to light new constitutional concerns with pretextual policing and calls for a reexamination of its constitutionality beyond the Fourth Amendment. It highlights how the expansion of pretext imperils civil rights and democratic principles, including separation of powers. By exploiting the constitutional irrelevance of pretextual motivations, police undermine free speech, access to information, and due process rights that empower individuals to scrutinize and hold state actors accountable. Ultimately, this Article raises the stakes of an already controversial doctrine and cautions that its continued expansion will further erode civil rights and police accountability
Socioeconomic Rights in Latin America: Closing the Gap between Aspiration and Reality
Get PDFLatin America is the region where constitutional socioeconomic rights have been taken most seriously. There is a high level of convergence around the idea that socioeconomic rights belong in constitutions. Moreover, there is a growing regional consensus that socioeconomic rights are fully justiciable. The empirical record of judicial enforcement, on the other hand, shows more variance and is less transformative than this consensus would suggest. Courts most commonly follow models of enforcement that place relatively low levels of strain on conceptions of judicial role but are also less likely to have transformative effects. For example, many courts seem to prefer to give petitioners an individual remedy rather than issuing a structural or collective remedy. Even in countries where courts have issued an aggressive program to enforce socioeconomic rights, such as Colombia, critics have argued that courts have not achieved enough. After surveying the gap between constitutionalization and on-the-ground enforcement, this essay considers solutions. I conclude that the best response is holistic: it would seek to redesign other institutions, such as ombudspersons and political parties, so that these institutions are more responsive to socioeconomic rights, while maintaining an important role for courts in catalyzing and coordinating attention to socioeconomic issues.
América Latina es la región donde los derechos socioeconómicos constitucionales se han tomado más en serio. Existe un alto nivel de convergencia en torno a la idea de que los derechos socioeconómicos pertenecen a las constituciones. Además, existe un creciente consenso regional de que los derechos socioeconómicos son plenamente justiciables. El registro empírico de ejecución judicial, por otro lado, muestra más variación y es menos transformador de lo que sugeriría este consenso. Los tribunales suelen seguir modelos de ejecución que imponen niveles relativamente bajos de tensión en las concepciones del papel judicial, pero también es menos probable que tengan efectos transformadores. Por ejemplo, muchos tribunales parecen preferir otorgar a los peticionarios un recurso individual en lugar de emitir un recurso estructural o colectivo. Incluso en países donde los tribunales han emitido un programa agresivo para hacer cumplir los derechos socioeconómicos, como Colombia, los críticos han argumentado que los tribunales no han logrado lo suficiente. Después de examinar la brecha entre la constitucionalización y la aplicación en el terreno, este ensayo considera soluciones. Concluyo que la mejor respuesta es holística: buscaría rediseñar otras instituciones, como defensores del pueblo y partidos políticos, para que estas instituciones respondan mejor a los derechos socioeconómicos, manteniendo al mismo tiempo un papel importante para los tribunales en la catalización y coordinación de la atención a los problemas socioeconómicos
Trademark Tarnishmyths
Get PDFTrademark law protects famous marks from dilution by tarnishment, defined by statute as use likely to harm the reputation of the famous mark. Tarnishing uses are typically those that connect a mark with disreputable goods or topics, like sex or drugs. Mark owners worry that consumers will not purchase products connected with sexually explicit or drug-related materials, and courts often presume the same. If those associations likely cause consumers to withhold custom or dissipate goodwill consumers have invested in the mark, anti-tarnishment protection might be justified. But if that harm is more mythic than real, the law penalizing tarnishing use of trademarks may be ripe for judicial skepticism or congressional reevaluation.
Indeed, constitutional invalidation might even be on the table. In a series of recent cases, the Supreme Court invalidated laws targeting false claims to military honors and the registration of disparaging, scandalous, or immoral trademarks on First Amendment grounds. In each case, the Court concluded the regulation was not narrowly targeted to an established harm. If harm via tarnishment happens rarely, or never, then laws penalizing tarnishing speech might violate the First Amendment.
We conducted two experiments to determine whether tarnishment likely occurs in prototypical cases when the mark in question is affiliated with sex, drugs, or sacrilege. In one study, treatment subjects viewed images of target marks used to sell cannabis products or in off-color, sexual contexts. We hypothesized that participants exposed to the potentially tarnishing instruments would respond by downrating the desirability of the tarnished mark. Instead, we found the opposite: for most marks, exposure to the drug- or sex-related stimulus increased or burnished the perceived desirability of the targeted trademark. We also hypothesized the tarnishment effect would be stronger among politically conservative respondents. While we found no net tarnishment effect among conservative respondents, the burnishment effect was more pronounced among liberal respondents.
In a second study, treatment subjects viewed banner ads with cannabis-infused Skittles and satanic-themed Sunday sales of Chick-fil-A sandwiches. We hypothesized that conservative respondents and respondents with high religiosity would evaluate the target brands more negatively after multiple exposures. We found that respondents with high religiosity reported Chickfil- A was less tasty in the test condition. But we also found that conservative respondents exposed to the drug-related stimuli reported Skittles were more wholesome compared to the control another burnishment effect.
The results of these experiments suggest that the case for tarnishment might be weak in circumstances where courts have been most willing to presume tarnishment occurs. Indeed, much of what courts have presumed about the tarnishing effect of sex-, drug-, and sacrilege-related uses may be more mythic than material