This article explores the Florida Supreme Court’s decision to affirm dismissal of a negligence cl... more This article explores the Florida Supreme Court’s decision to affirm dismissal of a negligence claim based on TV advertising. A child, mimicking the activity of the actor’s in a Mountain Dew commercial, harmed himself. In affirming the dismissal of the parents’ claim against Pepsico, Inc., the Florida Supreme Court determined that Pepsico, Inc. owed no duty of care to the child and there was no foreseeability of injury. While this no-duty rule is consistent with other publisher liability claims, the article points out that the research on the influence of advertising on children establishes that children do and will mimic the activities they view in commercials. In fact advertisers purposely associate their product with an activity that will entice the viewer. Children, in particular, are susceptible to the influence of TV advertising. The article gives empirical evidence indicating that children are more vulnerable to television messages than adults. The article suggests that fears...
This article describes the dual objectives of bankruptcy: the financial rehabilitation of debtors... more This article describes the dual objectives of bankruptcy: the financial rehabilitation of debtors and the satisfaction, to the greatest extent possible, of creditors' claims. The first objective promotes the "fresh start" notion, by holding some of debtors’ assets outside the reach of creditors, thereby preventing the bankrupt from becoming a ward of the state. Leaving the debtor with no post-bankruptcy assets would make the promise of a fresh start merely illusory. In contrast, the second objective implies that, in satisfying their claims, creditors should have the benefit of everything the debtor owns upon entering bankruptcy. A recent debate focuses on the juxtaposition of these dual bankruptcy objectives and the policy encompassed by the Employee Retirement Income Security Act of 1974 (ERISA). ERISA plans and similar pension plans encourage and protect accumulated savings for retirement years. Whether such pension assets are subject to creditors' attachment in ...
After the nation's fourth largest coal company, A.T. Massey, drove its competitor, Harmon Min... more After the nation's fourth largest coal company, A.T. Massey, drove its competitor, Harmon Mining Co., into bankruptcy, a jury found that the company committed fraud in its business dealings and awarded its bankrupt competitor $50 million. Political issues surrounding judicial campaign funding that arose soon after raised concerns about the politicalization of the judiciary and the effects of campaign dollars on "blind justice."This paper addresses the issue of drawing a "constitutional" line for judicial recusal when required due to the "appearance" or "probability" of bias based on a party's financial contribution to a judge's election campaign. The paper also reviews the history of judicial elections, discusses the scant pre-Caperton cases in which the Supreme Court has found a violation of due process based on the objective probability of judicial bias, and discusses the Caperton decision and the legal minefields that will arise...
Part I of this article frames the historical backdrop that built momentum for the civil rights mo... more Part I of this article frames the historical backdrop that built momentum for the civil rights movement affecting the LGBT community. Part II describes efforts to limit LGBT rights, including laws like Hester’s Law and similar legislation in other southern states that restrict cities and local governments from creating nondiscrimination protections for LGBT residents and employees. Part III of this article explains the political process doctrine, which dictates that laws that restructure the political process to obstruct the ability of minorities to enact legislation violate the Equal Protection Clause. While the application of the political process doctrine has been limited to race-based conduct and conduct restricting voting rights, Part IV considers the equal protection implications of laws like Hester’s Law that aim to preempt intrastate civil rights laws.In conclusion, this article suggests a novel analytical framework for analyzing the constitutionality of laws like Arkansas’s...
This Article questions whether religious objectors, who refuse to provide their services in facil... more This Article questions whether religious objectors, who refuse to provide their services in facilitating a same-sex marriage, are discriminating on the basis of sexual orientation or refusing to adopt a politically correct, albeit legal, view of marriage. If the latter, then, compelling political correctness can have a boomerang effect, creating more LGBTQ discrimination. Given this administration’s strong support for religious freedom and two new conservative justices on the Supreme Court, a legislative religious exemption in public accommodation laws may be safer for LGBTQ rights than risking a Supreme Court ruling constitutionally enshrining a religious right to discriminate. After the Introduction section, Part II of this Article will summarize the central meaning of the First Amendment discussed in a previous article. Part III will describe the history and meaning of the political correctness movement. Part IV will discuss microaggression, a concept born out of the political co...
As children play kids’ games, the media, parents, legislators, and mental health professionals de... more As children play kids’ games, the media, parents, legislators, and mental health professionals decry the unspeakable violence in these games and their effect on the psychological well-being of American youth. The controversy over how much violence is appropriate and whose role it is to decide what is or is not appropriate for children is not new. Ultimately, the Supreme Court decides where the line is drawn between protecting kids or society from uncertain harm and protecting First Amendment rights.Most federal courts reviewing government restrictions on access to or distribution of violent video games to minors have recognized the First Amendment protections afforded to these video games. Most courts determined that prohibiting the ability of minors to purchase, rent, or access violent video games was not the least restrictive means of achieving the state’s asserted interest in protecting children.This Article was written in 2010, just after the Supreme Court granted certiorari in ...
Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will co... more Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause or, more precisely, the principles of equality in commercial life as grounded in Colorado’s public accommodation law. In exploring the purpose inherent in regulating private conduct through public accommodation laws, this Essay suggests that the reconciliation of these seemingly irreconcilable interests is rooted in their common intrinsic value: maintaining the social order. Ultimately, Masterpiece Cakeshop provides an opportunity for the Court to reclaim the grounding principles inherent in public accommodation laws that recognize the civic duty in “ser...
This Article focuses on the tension and interplay between those advocating for LGBT-inclusive law... more This Article focuses on the tension and interplay between those advocating for LGBT-inclusive laws and those seeking protection under state, mini RFRAs from what they characterize as religious discrimination to resist the trend toward LGBT equal rights.
Bumfights symbolizes a frightening trend leading to the emergence of bum-bashing as sport. The Bu... more Bumfights symbolizes a frightening trend leading to the emergence of bum-bashing as sport. The Bumfight videos have spawned a copycat phenomenon where young people, usually males in their teens or early twenties, attack the homeless just for fun. The article presents a constitutionally permissible means for legislatively prohibiting the production and sale of Bumfights and for opening the door for negligent-publication claims against the producers and distributors of Bumfights. The article goes on to describe recent attempts by municipalities to enact ordinances that restrict the use and purchase of violent video games and other violent material and it categorizes Bumfights as unprotected speech falling outside the First Amendment umbrella of protection. The author suggests that a carefully drafted ordinance prohibiting the sale and distribution of Bumfights can pave the way for third-party liability claims under the theory of negligence per se and concludes by finding that the regu...
This paper explores the symbiotic relationship between the criminal justice system and immigratio... more This paper explores the symbiotic relationship between the criminal justice system and immigration law. The recent Supreme Court decision of Moncrieffe v. Holder illustrates the possible consequences of a state conviction for possession of a small amount of marijuana with intent to distribute on the removal of a non-citizen, who had legally resided in the United States for over twenty years. While the possibility of minor crimes can result in non-reviewable deportation orders, children at the borders have also faced an uncertain future. Part II will discuss the reasons behind the influx of unaccompanied alien children (UAC) and the legal issues involved in their presence and pending deportation proceedings. Part III will discuss the facts, issues, and lower court decisions in the Moncrieffe case. Part IV will review the various approaches courts have applied in determining whether a state law criminal conviction results in removal without relief and how the Moncrieffe decision affec...
Debates surrounding the role of judges in American governance have sparked poisonous hostilities.... more Debates surrounding the role of judges in American governance have sparked poisonous hostilities. The extent that attorneys may enter into this debate is controversial. The First Amendment, ethical rules of professional responsibility, and considerations of professionalism dictate lawyers' rights and responsibilities as participants in this great debate.This article explores the contours of attorneys' First Amendment rights. It discusses the various legal standards that are applied when attorneys' statements result in disciplinary actions. It then analyzes a series of pertinent decisions within a First Amendment framework, examines the efficacy of restricting critical attorney speech in light of the public's ignorance concerning governmental institutions and their functions, suggests practical ways to positively impact the public's perception of the judicial system, and concludes by summarize why the problem of public perception must be combated with more speech,...
Professor Day provides a short book review of this useful criminal law dictionary. She recommends... more Professor Day provides a short book review of this useful criminal law dictionary. She recommends the work to criminal justice professionals in practice and in policy-making and suggests it become a required text for all students of criminal law and procedure.
This article posits that regulating in an area of speech that raises questions about its social v... more This article posits that regulating in an area of speech that raises questions about its social value and potential harm will be extremely difficult under the Roberts Court. Government restrictions targeting the content of low value, but protected, expression will be reviewed under the exacting standards of core First Amendment speech. Even though the broadcast indecency policy is shrouded in administrative agency deference standards, it is unlikely that the Court will give the FCC free-wheeling reign to enforce its new policy, which is much more speech-restrictive than the FCC’s enforcement policy of the past forty years. While the Court may not reach the ultimate question of whether Pacifica is or should be overturned, the Fox case may bring the Court one step closer to erasing the First Amendment distinctions between broadcast media and other forms of media.
This article explores the Florida Supreme Court’s decision to affirm dismissal of a negligence cl... more This article explores the Florida Supreme Court’s decision to affirm dismissal of a negligence claim based on TV advertising. A child, mimicking the activity of the actor’s in a Mountain Dew commercial, harmed himself. In affirming the dismissal of the parents’ claim against Pepsico, Inc., the Florida Supreme Court determined that Pepsico, Inc. owed no duty of care to the child and there was no foreseeability of injury. While this no-duty rule is consistent with other publisher liability claims, the article points out that the research on the influence of advertising on children establishes that children do and will mimic the activities they view in commercials. In fact advertisers purposely associate their product with an activity that will entice the viewer. Children, in particular, are susceptible to the influence of TV advertising. The article gives empirical evidence indicating that children are more vulnerable to television messages than adults. The article suggests that fears...
This article describes the dual objectives of bankruptcy: the financial rehabilitation of debtors... more This article describes the dual objectives of bankruptcy: the financial rehabilitation of debtors and the satisfaction, to the greatest extent possible, of creditors' claims. The first objective promotes the "fresh start" notion, by holding some of debtors’ assets outside the reach of creditors, thereby preventing the bankrupt from becoming a ward of the state. Leaving the debtor with no post-bankruptcy assets would make the promise of a fresh start merely illusory. In contrast, the second objective implies that, in satisfying their claims, creditors should have the benefit of everything the debtor owns upon entering bankruptcy. A recent debate focuses on the juxtaposition of these dual bankruptcy objectives and the policy encompassed by the Employee Retirement Income Security Act of 1974 (ERISA). ERISA plans and similar pension plans encourage and protect accumulated savings for retirement years. Whether such pension assets are subject to creditors' attachment in ...
After the nation's fourth largest coal company, A.T. Massey, drove its competitor, Harmon Min... more After the nation's fourth largest coal company, A.T. Massey, drove its competitor, Harmon Mining Co., into bankruptcy, a jury found that the company committed fraud in its business dealings and awarded its bankrupt competitor $50 million. Political issues surrounding judicial campaign funding that arose soon after raised concerns about the politicalization of the judiciary and the effects of campaign dollars on "blind justice."This paper addresses the issue of drawing a "constitutional" line for judicial recusal when required due to the "appearance" or "probability" of bias based on a party's financial contribution to a judge's election campaign. The paper also reviews the history of judicial elections, discusses the scant pre-Caperton cases in which the Supreme Court has found a violation of due process based on the objective probability of judicial bias, and discusses the Caperton decision and the legal minefields that will arise...
Part I of this article frames the historical backdrop that built momentum for the civil rights mo... more Part I of this article frames the historical backdrop that built momentum for the civil rights movement affecting the LGBT community. Part II describes efforts to limit LGBT rights, including laws like Hester’s Law and similar legislation in other southern states that restrict cities and local governments from creating nondiscrimination protections for LGBT residents and employees. Part III of this article explains the political process doctrine, which dictates that laws that restructure the political process to obstruct the ability of minorities to enact legislation violate the Equal Protection Clause. While the application of the political process doctrine has been limited to race-based conduct and conduct restricting voting rights, Part IV considers the equal protection implications of laws like Hester’s Law that aim to preempt intrastate civil rights laws.In conclusion, this article suggests a novel analytical framework for analyzing the constitutionality of laws like Arkansas’s...
This Article questions whether religious objectors, who refuse to provide their services in facil... more This Article questions whether religious objectors, who refuse to provide their services in facilitating a same-sex marriage, are discriminating on the basis of sexual orientation or refusing to adopt a politically correct, albeit legal, view of marriage. If the latter, then, compelling political correctness can have a boomerang effect, creating more LGBTQ discrimination. Given this administration’s strong support for religious freedom and two new conservative justices on the Supreme Court, a legislative religious exemption in public accommodation laws may be safer for LGBTQ rights than risking a Supreme Court ruling constitutionally enshrining a religious right to discriminate. After the Introduction section, Part II of this Article will summarize the central meaning of the First Amendment discussed in a previous article. Part III will describe the history and meaning of the political correctness movement. Part IV will discuss microaggression, a concept born out of the political co...
As children play kids’ games, the media, parents, legislators, and mental health professionals de... more As children play kids’ games, the media, parents, legislators, and mental health professionals decry the unspeakable violence in these games and their effect on the psychological well-being of American youth. The controversy over how much violence is appropriate and whose role it is to decide what is or is not appropriate for children is not new. Ultimately, the Supreme Court decides where the line is drawn between protecting kids or society from uncertain harm and protecting First Amendment rights.Most federal courts reviewing government restrictions on access to or distribution of violent video games to minors have recognized the First Amendment protections afforded to these video games. Most courts determined that prohibiting the ability of minors to purchase, rent, or access violent video games was not the least restrictive means of achieving the state’s asserted interest in protecting children.This Article was written in 2010, just after the Supreme Court granted certiorari in ...
Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will co... more Next term, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will consider whether a baker’s religious objection to same-sex marriage justifies his violation of Colorado’s public accommodation law in refusing to bake a cake for a same-sex wedding. At the centerpiece of Masterpiece Cakeshop is a clash between the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause or, more precisely, the principles of equality in commercial life as grounded in Colorado’s public accommodation law. In exploring the purpose inherent in regulating private conduct through public accommodation laws, this Essay suggests that the reconciliation of these seemingly irreconcilable interests is rooted in their common intrinsic value: maintaining the social order. Ultimately, Masterpiece Cakeshop provides an opportunity for the Court to reclaim the grounding principles inherent in public accommodation laws that recognize the civic duty in “ser...
This Article focuses on the tension and interplay between those advocating for LGBT-inclusive law... more This Article focuses on the tension and interplay between those advocating for LGBT-inclusive laws and those seeking protection under state, mini RFRAs from what they characterize as religious discrimination to resist the trend toward LGBT equal rights.
Bumfights symbolizes a frightening trend leading to the emergence of bum-bashing as sport. The Bu... more Bumfights symbolizes a frightening trend leading to the emergence of bum-bashing as sport. The Bumfight videos have spawned a copycat phenomenon where young people, usually males in their teens or early twenties, attack the homeless just for fun. The article presents a constitutionally permissible means for legislatively prohibiting the production and sale of Bumfights and for opening the door for negligent-publication claims against the producers and distributors of Bumfights. The article goes on to describe recent attempts by municipalities to enact ordinances that restrict the use and purchase of violent video games and other violent material and it categorizes Bumfights as unprotected speech falling outside the First Amendment umbrella of protection. The author suggests that a carefully drafted ordinance prohibiting the sale and distribution of Bumfights can pave the way for third-party liability claims under the theory of negligence per se and concludes by finding that the regu...
This paper explores the symbiotic relationship between the criminal justice system and immigratio... more This paper explores the symbiotic relationship between the criminal justice system and immigration law. The recent Supreme Court decision of Moncrieffe v. Holder illustrates the possible consequences of a state conviction for possession of a small amount of marijuana with intent to distribute on the removal of a non-citizen, who had legally resided in the United States for over twenty years. While the possibility of minor crimes can result in non-reviewable deportation orders, children at the borders have also faced an uncertain future. Part II will discuss the reasons behind the influx of unaccompanied alien children (UAC) and the legal issues involved in their presence and pending deportation proceedings. Part III will discuss the facts, issues, and lower court decisions in the Moncrieffe case. Part IV will review the various approaches courts have applied in determining whether a state law criminal conviction results in removal without relief and how the Moncrieffe decision affec...
Debates surrounding the role of judges in American governance have sparked poisonous hostilities.... more Debates surrounding the role of judges in American governance have sparked poisonous hostilities. The extent that attorneys may enter into this debate is controversial. The First Amendment, ethical rules of professional responsibility, and considerations of professionalism dictate lawyers' rights and responsibilities as participants in this great debate.This article explores the contours of attorneys' First Amendment rights. It discusses the various legal standards that are applied when attorneys' statements result in disciplinary actions. It then analyzes a series of pertinent decisions within a First Amendment framework, examines the efficacy of restricting critical attorney speech in light of the public's ignorance concerning governmental institutions and their functions, suggests practical ways to positively impact the public's perception of the judicial system, and concludes by summarize why the problem of public perception must be combated with more speech,...
Professor Day provides a short book review of this useful criminal law dictionary. She recommends... more Professor Day provides a short book review of this useful criminal law dictionary. She recommends the work to criminal justice professionals in practice and in policy-making and suggests it become a required text for all students of criminal law and procedure.
This article posits that regulating in an area of speech that raises questions about its social v... more This article posits that regulating in an area of speech that raises questions about its social value and potential harm will be extremely difficult under the Roberts Court. Government restrictions targeting the content of low value, but protected, expression will be reviewed under the exacting standards of core First Amendment speech. Even though the broadcast indecency policy is shrouded in administrative agency deference standards, it is unlikely that the Court will give the FCC free-wheeling reign to enforce its new policy, which is much more speech-restrictive than the FCC’s enforcement policy of the past forty years. While the Court may not reach the ultimate question of whether Pacifica is or should be overturned, the Fox case may bring the Court one step closer to erasing the First Amendment distinctions between broadcast media and other forms of media.
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