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FSU Law Focus - 05/27/2022
Get PDFFrom the Dean: Wayne Logan publishes casebook (Sentencing Law, Policy, and Practice); Rice Teaches Investment Management Class; Alum Profile: Salomon Laguerre (\u2711); Celebrating 2022 Grad Shaina Ruthhttps://ir.law.fsu.edu/fsu-law-focus/1143/thumbnail.jp
Government Speech and the Establishment Clause
Get PDFThis Article argues that the Establishment Clause prohibits public actors or agencies from adopting religious messages and symbols. The limitation is explicitly stated in the First Amendment, which restricts government from encroaching on religious belief and ritual. Separation between private and public spheres protects thought, belief, and practice under the Free Exercise Clause and prevents official orthodoxy under the Establishment Clause. One religion clause requires government to respect deeply held personal beliefs that are parallel to beliefs in God, while the other clause prohibits government from participating in sectarian conduct. Government speech can describe, explain, contextualize, and characterize religious rituals without actually engaging in them. While the Establishment Clause prohibits government intrusion into individual autonomy, the Free Exercise Clause safeguards beliefs of persons but not of government entities. The Article first defines government speech, distinguishes it from sincerely held beliefs of individuals who work in government, and discusses examples of legitimate public communications about religion. It further critiques cases arising from claims that government speech violated the Establishment Clause by having religious monuments on public property and organizing sectarian prayer before legislative sessions. Next, the Article reviews current Establishment Clause jurisprudence and the resulting tests used to evaluate governmental speech, asserting that the existing tests should be thought of as levels of scrutiny. It also explains whether and how each test engages the overarching question of whether the government speech is religious or about religion, the core distinction between government participation in and government tolerance of religion. Finally, the Article advocates for the (now unwisely overturned) excessive government entanglement test of Lemon v. Kurtzman as the best mode of analysis of these two contextual features of the First Amendment
Rethinking the Government Speech Doctrine, Post-Trump
Get PDFThe Supreme Court has held that when the government speaks, it faces few constitutional constraints, including adherence to viewpoint neutrality. The Court has indicated that if voters dislike the content of governmental speech, they should express this displeasure through democratic process. Yet the inadequacy of this logic has been exposed by the Trump presidency, which reflected extraordinary willingness to defy norms and conventions of the presidency, including the expectation that the office would not be abused to advance partisan goals or attack political enemies. Since many of Trump\u27s statements had the precise aim of influencing popular self-determination, his presidency shows a weakness of the government speech doctrine\u27s reliance on electoral accountability: it offers no constitutional mechanism for addressing government speech that distorts democratic process itself This Article addresses this lacuna in the government speech doctrine by demonstrating how norms of democratic accountability should discipline the government speech doctrine. It first reconstructs the liberal origins of the government speech doctrine and demonstrates these origins elicit the tension between constitutional and democratic authority. The principles ofpopular autonomy that inform the government speech doctrine are premised upon cultivating responsible and independent reasoning by voters. These norms are the same that justify traditional application of viewpoint neutrality as a mechanism for protecting political reasoning in First Amendment doctrine. The government speech doctrine is novel because it extends this logic offree speech not to constrain the government through constitutional oversight but to suggest it should be subject to democratic rather than constitutional control. A sensitive approach to this balance in general and the government speech doctrine in particular vindicates constitutional scrutiny of government speech when it threatens reasoned and balanced political discourse. The Article then explores one class of government speech characteristic of Trumpist governance that shows the urgency of revising the theory and practice of the government speech doctrine: partisan speech that deviates from neutral governance. The responsible individual reasoning and collective electoral accountability that underlie the government speech doctrine suggest its appropriate future development: government speech invites constitutional scrutiny when it threatens to distort or prejudice, rather than cultivate and clarify, citizens\u27 reasoning. The Supreme Court, rather than rigidly exempting state speech from constitutional scrutiny, should adopt such a nuanced analysis in future application of the government speech doctrine
The Color of Property and Auto Insurance: Time for Change
Get PDFInsurance company executives issued statements condemning racism and urging change throughout society and in the insurance industry after the huge Black Lives Matter demonstrations in summer 2020. The time therefore is ripe for examining insurance as it relates to race\u27 and racism, including history and current regulation. Two of the most important types of personal insurance are property and automobile. Part I begins with history, focusing on property insurance, auto insurance, race, and racism in urban areas around the mid-twentieth century. Private insurers deemed large areas of cities where African Americans lived to be blighted and refused to insure all homes in these areas, despite lacking clear evidence of increased risk. This created a property insurance crisis in the cities. Affordable automobile insurance in areas such as Harlem was hard to come by,. complaints of race discrimination went back to the 1930s. The federal government got involved in the late 1960s after state and local remedies were insufficient. The federal Urban Property Protection and Reinsurance Act of 1968 (UPPRA) was aimed to incentivize private insurance companies to enter the urban market and to support states in establishing plans (known as Fair Access to Insurance Requirements or FAIR Plans) that would require companies to cover a certain amount of risk in urban areas. The UPPPRA and FAIR plans led to a robust urban property insurance market at minimal cost to the government and industry, Part II finds. The federal program later was discontinued and largely forgot ten, probably due to its success. This forgotten history tells us that insurance markets have not functioned in a neutral way and that for long periods companies did not sell property insurance based on objective neutral data but based at least in part on racial prejudice. It further shows that the federal government can play a socially positive rule in insurance markets without miring the government in taking on the entire risk or costing taxpayers huge sums. Yet the reform measures did not end redlining or challenge many of the equity issues involved in insurance. Property and auto insurance companies have shifted in recent decades from explicit race-based exclusions to the use of facially neutral practices for pricing and underwriting such as algorithms, machine learning, and credit scores. However, insurance antidiscrimination law (which is largely state law) has not kept pace. No federal law directly bans race discrimination in auto insurance, and federal housing antidiscrimination law has not been consistently applied to housing insurance practices which have a disproportionate impact on racial minorities. Three reforms would improve current practices, Part III asserts. First, insurance regulation should require more disclosure with requirements parallel to those of the Home Mortgage Disclosure Act. Insurers should be required to collect and disclose specific data on insurance applications and declinations, membership in protected groups, and other information. Second, a private cause of action should potentially be made available for insurance discrimination when insurance practices lead to a disparate impact on African Americans and other racial minorities. Third, insurance regulation should be shifted away from rate regulation which currently serves no useful purpose;~ this would make more room and time for the other proposed reforms which might lead to long overdue changes in property and auto insurance regulation and practices
FSU Law Focus - 06/15/2022
Get PDFFrom the Dean: Karusha Sharpe new assistant dean for academic programs; Employers Invited to Interview FSU Law Students; Alum Profile: Daniela Donoso (\u2720); Celebrating 2022 Grad Luke Kanehttps://ir.law.fsu.edu/fsu-law-focus/1161/thumbnail.jp
FSU Law Focus - 04/25/2022
Get PDFFrom the Dean: Call for Public Service Award nominations; FSU Trustee Vivian de las Cuevas-Diaz; Alum Profile: Autumn Beck Blackledge (\u2701); Student Profile: 3L Megan Cloudenhttps://ir.law.fsu.edu/fsu-law-focus/1252/thumbnail.jp
FSU Law Focus - 05/06/2022
Get PDFFrom the Dean: Graduation 2022; Kenyan Supreme Court Cites Prof. Landau’s Work; Alum Profile: Leron E. Rogers (\u2799); Student Profile: 2022 Grad Christian Mairenahttps://ir.law.fsu.edu/fsu-law-focus/1263/thumbnail.jp
FSU Law Focus - 03/11/2022
Get PDFFrom the Dean: Alumni Invited to Preview Day; Faculty Profile: Henry Whitaker; Alum Profile: Lauren Reynolds (\u2714); Student Profile: 3L Nidia Imtiazhttps://ir.law.fsu.edu/fsu-law-focus/1342/thumbnail.jp
A Taxing Mistake
Get PDFCitibank made front page news for reasons it would rather have avoided when it mistakenly transferred $900 million of its own money to creditors of Revlon. When Citibank discovered the error the next day, it asked (initially politely then less so) for the creditors to return the mistaken payment. Several creditors refused and Citibank was forced to initiate litigation to attempt to get the money returned. This litigation is ongoing, but the first round of the battle was won by the lenders when a federal district court ruled that they had a legal right to retain Citibank\u27s mistaken payment under the discharge for value defense. This Article briefly reviews the facts and the opinion of that case. On appeal, the Second Circuit reversed that decision and held for Citibank thereby requiring the lenders to return Citibank\u27s money. This piece also reviews that opinion. The primary and original contribution of the piece, however, is to discuss the tax aspects of all the possible outcomes. While some tax consequences are straightforward, there are several interesting and less certain tax results that could apply to all three parties (Citibank, Revlon, and the lenders). This Article will explain those possibilities and review the tax doctrines that will apply once Citibank\u27s litigation has concluded
