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Police Vigilantism
Get PDFThis Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit legal gray areas. Police wield the state\u27s coercive power under the color of law, enjoying immunities and legal protections unavailable to private individuals. Yet, simultaneously, they can invoke their identity as private individuals to circumvent constitutional constraints on their conduct.
The resulting rupture of accountability frameworks is a significant design flaw that harms policed individuals and communities while undermining the institution of policing from within. Where these frameworks presume a clear divide between state and private action, officers instead navigate a liminal space, leveraging state-sanctioned power while exploiting doctrinal ambiguities to subvert legal constraints. The Article critically evaluates how the state action doctrine, designed to delineate state and private conduct, fails to account for this reality. So, too, does the qualified immunity doctrine, which often shields vigilante conduct that exceeds constitutional bounds. To address this pressing problem, the Article advocates for a radical reconceptualization of police authority and accountability. It proposes reinterpreting the state action doctrine to break down the dichotomy between state and private action. It suggests implementing comprehensive statutory regulations to constrain police identity shopping. Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itsel
FSU Law Focus - 03/29/2024
Get PDFFrom the Dean: Inaugural Distinguished Lecture in Election Law - Richard Briffault, Decline and Fall? The Uncertain Future of Campaign Finance Law; FSU Law Hosts 15th Annual SELE Meeting; Alum Profile: Skye Musson (’19); Student Profile: 3L Daniela Marrerohttps://ir.law.fsu.edu/fsu-law-focus/1223/thumbnail.jp
Juries and Tax: The Effect of Income Taxation on Tort Damages
Get PDFIn some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 1 0 0th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions. Proponents of a rule that awards should reflect taxation and informing the jury of the tax exclusion stress compensation. Without this rule and information, juries may mistakenly believe that they must inflate damages to account for taxes, thereby handing the plaintiff a windfall. Opponents argue that awards should not reflect taxation and that providing exclusion information unnecessarily complicates trial and benefits the tortfeasor by lowering damage awards. What damages rule should a state adopt, and what should a court do to implement the rule when the defendant requests an instruction informing the jury that some damages are excluded from federal income tax?
We revisit the issue of the taxation of damages and review the policy justifications that have been offered to justify the current exclusion. We then argue that the efficient rule is to measure damages by the gross harm caused by the tortfeasor. To determine how best to implement that rule, we conducted an experiment designed to determine the effects of tax jury instructions. Our conclusion is that the optimal damages rule is best implemented by giving no jury instructions on damages. Perhaps surprisingly, that is our conclusion even if tax law changed to make damages taxable. Even if a jurisdiction were to adopt an inefficient rule of damages, our experiment offers guidance on the approach to jury instructions that would best implement the rule
Restorative Constitutionalism
Get PDFCass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at many moments in U.S. history, including in both the Trump and Biden administrations. We survey examples of restorative constitutionalism both inside and outside the United States and show that it is a powerful and varied mode of change that can facilitate popular and elite consensus and repair damage wrought by anti-democratic political actors. Restoration is not without risks: it may restrict the horizons of constitutional imagination and be abused for authoritarian ends. Nonetheless, progressives would be well-served by engaging with restorative constitutional discourse, rather than treating it as a trap and allowing it to be monopolized by conservative constitutionalists
Market versus policy responses to novel occupational risks
Get PDFThe unprecedented occupational risks posed by the COVID-19 pandemic prompted employers to boost wages and federal authorities to propose hazard pay policies. This article estimates a market-based compensating differential for workers facing elevated risks through contact with the public using CPS employment data for 2019–2020 and occupational characteristic data from the US Department of Labor’s Occupational Information Network. The estimated premium for exposure was roughly 1000 for essential workers. These premiums fall short of those proposed—but not enacted—by the federal government and are more commensurate with estimates of the value of a statistical life than were the federal proposals
First Amendment Defenses to Alien Transportation Crimes
Get PDFFlorida law now prohibits the transportation of undocumented aliens into the state. Briefings characterize these laws as unconstitutionally preempting federal immigration law and federal due process rights. Despite this emphasis on due process, field, and conflict preemption unconstitutionality, few have addressed the First Amendment implications of human smuggling prosecutions of natural and some corporate persons. The Supreme Court\u27s Free Exercise precedent protects the religious freedoms of natural persons and some corporations. Under state alien transportation laws, these freedoms cease to exist. Because the Supreme Court has extended these religious protections to some corporations, they too are entitled to First Amendment protection from transportation crimes when religious principles motivated such crimes
FSU Law Focus - 05/19/2024
Get PDFFrom the Dean: Graduation ceremony and reception 2024; A Special Graduate; FSU Law Student Employment Successhttps://ir.law.fsu.edu/fsu-law-focus/1267/thumbnail.jp