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Fla. L. Rev. News

Fla. L. Rev. Forum

Stephen G. Gilles & Nelson Lund
A Second Amendment Right to Be Negligent?
Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent

Professor Andrew Jay McClurg maintains that the Second Amendment has created a right to store firearms negligently. It is conceivable that some such thing could happen, just as the Supreme Court has used the First Amendment to require plaintiffs who are public figures to prove more than negligence in defamation actions. But Professor McClurg presents no evidence to support his claim. He criticizes many decisions in which courts declined to find liability when a gun stolen from the defendant was used to injure an innocent person. But he cites no case in which a court invoked the Second Amendment as the ground for its decision. To accept Professor McClurg’s claim that the Second Amendment has caused courts to distort the application of standard tort principles, we have to believe that they have done it secretly and that they undertook this insidious project before they believed there was a legal basis for what they were doing. Although the title of Professor McClurg’s article appears to be a marketing gimmick, he does make two somewhat more serious claims. First, he maintains that courts have misapplied well-established tort principles in refusing to hold the victims of gun thefts liable for injuries subsequently inflicted with the stolen weapons. Second, he contends that legislatures have irresponsibly failed to impose objectively reasonable safe-storage duties on gun owners. Both claims are mistaken. Read more.





Fla. L. Rev. Forum

Grayson M.P. McCouch
Another Perspective on Testamentary Arbitration
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Contract

The American law of succession is remarkable both for its expansive concept of testamentary freedom and for its antiquated and cumbersome probate system. In principle, a testator enjoys virtually unlimited freedom to dispose by will of property owned at death, but enforcement of the testator’s directions generally requires a proceeding in a probate court to prove the will and appoint an executor to administer the estate. To avoid the expense and delay of court proceedings, transferors routinely use revocable trusts and other devices that replicate the effects of a will but operate outside the probate system. Moreover, some transferors seek to prevent their wills and trusts from becoming embroiled in litigation by requiring that disputes be resolved by private arbitration. The twin phenomena of probate avoidance and mandatory arbitration clauses stem from a common desire on the part of transferors to control the process as well as the substantive terms governing the disposition of their accumulated wealth. While transferors are generally free to dispose of property during life or at death without unnecessary court involvement, mandatory arbitration clauses raise controversial questions of enforceability and procedural fairness. Read more.



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