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Fla. L. Rev. News

Fla. L. Rev. Forum

Allen Rostron
Guns, Speech, and Breathing Space
Response to Andrew McClurg, The Second Amendment Right to Be Negligent

In The Second Amendment Right to Be Negligent, Professor Andrew McClurg astutely observes that current law provides the constitutional right to be negligent in two important realms. He first notes that the Supreme Court has construed the freedom of expression protected by the First Amendment as including a right to be negligent in speaking about public officials, public figures, and issues of public interest. Professor McClurg then argues that a constitutional right to be negligent has emerged under the Second Amendment as well, with courts and legislatures essentially creating a right to be negligent in the sale and storage of firearms. Professor McClurg’s focus is squarely on the Second Amendment right to be negligent, so his Article briefly mentions the parallel First Amendment right but does not discuss it in great detail. In this response to the Article, I will explore the relationship between the rights a bit further and offer a few thoughts on the relative merits of the First Amendment right to be negligent and its Second Amendment cousin. Read more.

Fla. L. Rev. Forum

David Horton
The Limits of Testamentary Arbitration
Response to E. Gary Spitko, The Will As An Implied Unilateral Arbitration Agreement

In The Will As An Implied Unilateral Arbitration Contract, Professor E. Gary Spitko argues that there is an implied unilateral contract between the government and individual property owners. He claims that the state promises to distribute a person’s assets at death according to their wishes (including their desire to compel arbitration of any claim relating to their estate) in return for the person generating wealth during their life. He therefore concludes that even people who are not mentioned in the will are either equitably estopped from challenging the arbitration provision or bound as third party beneficiaries of this “donative freedom contract.” In this invited reply to the Florida Law Review Forum, I explain why I respectfully disagree with Professor Spitko. I argue that the Federal Arbitration Act and its state analogues do not cover claims brought by non-consenting parties. In addition, I contend that this exclusion is necessary to prevent opportunists from using testamentary arbitration to insulate their conduct from judicial review. Read more.

Environmental Law

Florida Constitutional Law