Criminal Procedure

Reassigning Batson: A Modern Approach

Max Angel

Abstract In Batson v. Kentucky, the Supreme Court of the United States held that using peremptory challenges to strike jurors solely on their race violates the Equal Protection Clause. Following that decision, the Supreme Court extended Batson to gender-based peremptory challenges, holding that state-sponsored group stereotypes rooted in historical prejudice that bars a potential juror […]

Models of Bail Reform

Brandon L. Garrett

Abstract Bail reform is an urgent topic in the United States and internationally, but what constitutes reform and how to accomplish reform goals is contested. Jails are a modern epicenter of incarceration, with a stunning growth in American jail populations over the past four decades despite declines in both arrests and crime. As many as […]

The Evolving Standards, As Applied

William W. Berry III

Abstract In Jones v. Mississippi, the Supreme Court of the United States adopted a narrow reading of its Eighth Amendment categorical bar on mandatory juvenile life-without-parole (JLWOP) sentences. Specifically, the Court rejected Jones’s claim that the Eighth Amendment categorical limit required a sentencing jury or judge make a finding of permanent incorrigibility—that the defendant is […]

Black Lives Matter in the Jury Box: Abolishing the Peremptory Strike

Payton Pope

Abstract Since its creation, the Batson Challenge has been widely criticized as a failure. It does not prevent discrimination in the jury selection process, has no bite, and does not serve as an adequate incentive to prevent discriminatory practices. The Supreme Court of the United States has had multiple opportunities in the last thirty years […]

Held at Gunpoint: Applying the Physical Restraint Sentencing Enhancement

Joshua McCroskey

Abstract Federal circuit courts of appeal often disagree about how to interpret the United States Sentencing Guidelines. One contentious guideline is the physical restraint sentencing enhancement. This enhancement increases the sentence of a defendant who physically restrained a victim during a crime. Circuit courts disagree about whether to apply this enhancement to a defendant who […]

Beyond Bail

Jenny E. Carroll

Abstract From the proliferation of community bail funds to the implementationof new risk assessment tools to the limitation and even eradication ofmonetary bail, reform movements have altered the landscape of pretrialdetention. Yet, reform movements have paid little attention to theemerging reality of a post-monetary-bail world. With monetary bail anunavailable or disfavored option, courts have come […]

Criminal Justice Citizenship

Daniel S. McConkie, Jr.

Abstract The American criminal justice system is fundamentally democraticand should reflect an ideal of citizenship that is equal, participatory, anddeliberative. Unfortunately, the outcomes of criminal cases are nowalmost always determined by professionals (prosecutors, defenseattorneys, and judges) instead of by juries. This overly bureaucratizedsystem of adjudication silences the voice of the people. A better systemwould strengthen […]

Keeping Hope Alive: Criminal Justice Reform During Cycles of Political Retrenchment

Carol S. Steiker

Abstract For the past decade or so, criminal justice reform in the United States has been having a moment. After decades of massive increases in incarceration rates around the country, advocates for serious rethinking of harsh criminal justice policies have begun to find more receptive audiences at the local, state, and federal levels. However, the […]

Addressing Due Process Concerns: Evaluating Proposals for Civil Asset Forfeiture Reform

Kelly Milliron

Abstract Civil asset forfeiture compromises criminal due process protections for the sake of allowing the government to take property from citizens and pocket the profits. Within the last decade, several news outlets have reported instances where law enforcement agencies took property from citizens–without arresting or convicting them–and spent the proceeds from seized cash, homes, or […]

A Threat Assessment Framework for Lone-Actor Terrorists

Melissa Hamilton

Abstract Lone-actor terrorist attacks are on the rise in the Western world in terms of numbers and severity. Public officials are eager for an evidence-based tool to assess the risk that individuals pose for terroristic involvement. Yet actuarial models of risk validated for ordinary criminal violence are unsuitable to terrorism. Lone-actor terrorists vary dramatically in […]

Coordinating Community Reintegration Services for “Deportable Alien” Defendants: A Moral and Financial Imperative

Written by: Amy F. Kimpel

Abstract Recidivism rates for individuals who are convicted of illegal entry and re-entry (U.S.C. §§ 1325 and 1326) are quite high despite post-sentencing deportations. The “holistic defense” model developed in New York City at the Neighborhood Defender Services and Bronx Defenders has been instrumental in achieving better outcomes for criminal defendants and their communities, in […]

Unusual Deference

Written by: William Berry

Abstract Three Eighth Amendment decisions—Harmelin v. Michigan, Pulley v. Harris, and McCleskey v. Kemp—have had enduring, and ultimately, cruel and unusual consequences on the administration of criminal justice in the United States. What links these cases is the same fundamental analytical misstep—the decision to ignore core constitutional principles and instead defer to state punishment practices. […]

Convictions Based on Character: An Empirical Test of Other-Acts Evidence

Written by: Michael Cicchini & Lawrence White

Abstract Despite the time-honored judicial principle that “we try cases, rather than persons,” courts routinely allow prosecutors to use defendants’ prior, unrelated bad acts at trial. Courts acknowledge that jurors could improperly use this other acts evidence as proof of the defendant’s bad character. However, courts theorize that if the other acts are also relevant […]

The Right To Counsel But Not The Presence of Counsel: A Survey of State Criminal Procedures For Pre-Trial Release

Written by: John P. Gross

Abstract There is a widely-held belief that the state provides counsel to indigent criminal defendants at their initial appearance in state court. However, the majority of states do not provide counsel to indigent defendants at their initial appearance when a judicial officer determines conditions of pretrial release. State criminal procedure codes fail to provide the […]

Iesha S. Nunes, "Hands Up, Don't Shoot": Police Misconduct and the Need for Body Cameras

Abstract The 2014 shooting of Michael Brown in Ferguson, Missouri is probably the most notable of the many recent cases in the media involving police officers’ use of excessive force. After Officer Darren Wilson shot and killed Brown, varying accounts of what transpired between the two men surfaced. Officer Wilson claimed he was defending himself […]

Samuel R. Wiseman,What Is Federal Habeas Worth?

Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed for producing a huge volume of costly litigation and very little relief. Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent […]

Judge Emmett Ripley Cox, Thirty-Two Years on the Federal Bench: Some Things I Have Learned

In this Essay, prepared as the basis for the 2014 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, Judge Cox discusses a few things he learned from his experience as a trial judge and later as an appellate judge. Specifically, he addresses how the proliferation of federal law—both criminal and civil—imposes […]

Who Watches the Watchers? Judges, Guilty Pleas, and Outsider Review

Laura I Appleman

Abstract Response to Anne Traum, Using Outcomes to Reframe Guilty Plea Adjudication The principles that justify our imposition of punishment in public jury trials rapidly disintegrate in the informal, private realm of plea agreements. But what is the best way to regulate a system that does most of its adjudication behind closed doors? In her article, Using […]

Kathleen Carlson, Ryan v. Gonzalez and the Potential Elimination of the Ineffective Assistance of Counsel Post Conviction Failsafe

Recently, the United States Supreme Court addressed in Ryan v. Gonzales “whether the incompetence of a state prisoner requires suspension of the prisoner’s federal habeas corpus proceedings.” In a unanimous decision, the Court held that “the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when […]

Steven Nauman, Brown v. Plata: Renewing the Call to End Mandatory Minimum Sentencing

After more than twenty years of litigation, the United States Supreme Court finally determined whether California’s overcrowded prison system created a constitutional violation in Brown v. Plata. With prisons and jails across the country operating at well over 100% capacity, the Court concluded what advocates had been screaming for over a decade: prison overcrowding cannot […]

Sam Kamin & Justin Marceau, Vicarious Aggravators

In Gregg v. Georgia, the Supreme Court held that the death penalty was constitutional so long as it provided a non-arbitrary statutory mechanism for determining who are the worst of the worst, and therefore, deserving of the death penalty. As a general matter, this process of narrowing the class of death eligible offenders is done […]

Meghan J. Ryan, The Missing Jury: The Neglected Role of Juries in Eighth Amendment Punishments Clause Determinations

A recent study of death penalty cases has revealed that judges, who are ordinarily thought of as the guardians of criminal defendants‘ constitutional rights, often impose harsher punishments than jurors. This may be unsettling in its own right, but it is especially concerning when one considers that judges are the individuals charged with determining whether […]

Jacy Owens, A Progressive Response: Judicial Delegation of Authority to Federal Probation Officers

Federal probation officers supervise millions of offenders who must each comply with a multitude of probation conditions. These officers need enough flexibility to deal with the evolving needs of each offender, without having to clog the court system with repeated requests for modifications. Yet federal courts differ in the amount of discretionary authority they grant […]

William W. Berry III, Practicing Proportionality

At the heart of the Eighth Amendment‘s Cruel and Unusual Punishments Clause are two concepts of proportionality—absolute and relative. Absolute proportionality (“cruel”) asks whether the sentence is commensurate with the state‘s purposes of punishment. Relative proportionality (?unusual?), by contrast, asks whether the sentence is relatively similar to the outcomes of similar cases. Absolute proportionality sets […]

Caycee Hampton, Confirmation of a Catch-22: Glik V. Cunniffe and the Paradox of Citizen Recording

63 Fla. L. Rev. 1549 (2011)| | | | On October 1, 2007, Simon Glik observed several police officers arresting a young man on the Boston Common. Concerned that the officers were employing excessive force, Glik began to record the arrest with his cell phone. After successfully arresting the young man, an officer asked Glik […]

Kathryn A. Kimball, Losing our Soul: Judicial Discretion in Sentencing Child Pornography Offenders

63 Fla. L. Rev. 1515 (2011)| | | | Child pornography offenders capitalize on the vulnerability of children and find pleasure in their victims’ humiliation. In United States v. Irey, the defendant sadistically raped, sodomized, and tortured more than fifty prepubescent girls and then broadcast this abuse across the Internet; yet the court characterized Irey […]

Scott A. Moss, The Overhyped Path from Tinker to Morse: How the Student Speech Cases Show the Limits of Supreme Court Decisions-for The Law and for the Litigants

63 Fla. L. Rev. 1407 (2011)| | | | Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965’s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam War. In 1983, amidst parental and political […]

Jonathan Witmer-Rich, Interrogation and the Roberts Court

63 Fla. L. Rev. 1189 (2011)| | | ARTICLE :: Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts […]

Nathan A. Frazier, Amending for Justice's Sake: Codified Disclosure Rule Needed to Provide Guidance to Prosecutor's Duty to Disclose

63 Fla. L. Rev. 771 (2011)| | | | ABSTRACT :: “I wouldn’t wish what I am going through on anyone,” Senator Ted Stevens commented after losing his seat in the United States Senate on November 18, 2008. Senator Stevens lost the race largely because a criminal conviction damaged his reputation. After Senator Stevens endured […]

Russell D. Covey, Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof

63 Fla. L. Rev. 431 (2011)| |   | | ABSTRACT :: This Article introduces a new concept-“longitudinal guilt”-which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to […]

Adam Denver Griffin, The Federal Sentencing Guidelines' Abuse of Trust Enhancement: An Argument for the Professional Discretion Approach

63 Fla. L. Rev. 457 (2011)| |   | | INTRODUCTION :: In a national issue of first impression for the circuit courts, the Eleventh Circuit, in United States v. Louis, held that a federally licensed firearm dealer who knowingly sells a firearm to a convicted felon should not receive additional punishment for abusing a position […]

Peter Nicolas, The Lavender Letter: Applying the Law of Adultery to Same Sex Couples and Same Sex Couples

63 Fla. L. Rev. 97 (2011)| | | | INTRODUCTION :: In the political and legal debate over same-sex marriage, references to the rights (or benefits or privileges) and responsibilities (or burdens or obligations) associated with marriage constitute a key weapon in the rhetorical battle. Most of the focus, however, has been on the “rights” […]

Tim Sobczak, The Consent-Once-Removed Doctrine: The Constitutionality of Passing Consent from an Informant to Law Enforcement

62 Fla. L. Rev. 493 (2010) |   |   |   | ABSTRACT :: In 2002 Brian Bartholomew was charged with possession of methamphetamine. In hopes of obtaining leniency, Bartholomew chose to assist the Central Utah Narcotics Task Force as a confidential informant. As an informant, Bartholomew arranged to buy drugs from Afton Callahan […]

Andrew Brady Spalding, Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions Against Emerging Markets

62 Fla. L. Rev. 351 (2010) |   |   |   | ABSTRACT :: Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA), is to deter bribery, empirical evidence demonstrates a problematic collateral effect. In countries where bribery is perceived to be relatively common, the present enforcement regime […]

Andres Healy, Adjudicators, Not Legislators: Eleventh Circuit Declines Opportunity to "Breathe Further Life" Into § 212(c) Deportation Relief

62 Fla. L. Rev. 559 (2010) | | | | CASE COMMENT :: As a boy, De la Rosa had come to the United States from the Dominican Republic in search of a better life. Over the next twenty years, he built that life. Now, as a man, he asked for only one thing-the opportunity […]

Dhammika Dharmapala, Nuno Garoupa & Joanna M. Shepherd, Legislatures, Judges, and Parole Boards: The Allocation of Discretion Under Determinate Sentencing

62 Fla. L. Rev. 1037 (2010) | | | | INTRODUCTION :: Criminal sentencing in the United States has undergone sweeping changes in recent decades. The most significant development in sentencing has been the reallocation of power away from judges and parole boards and towards legislatures. State legislatures have accomplished this reallocation of power by […]

Benjamin H. Barton, Against Civil Gideon (and for Pro Se Court Reform)

62 Fla. L. Rev. 1227 (2010)| | | | INTRODUCTION :: “Civil Gideon” is a short-hand name for a concept that has been the white whale of American poverty law for the last forty years-a constitutional civil guarantee to a lawyer to match the criminal guarantee from Gideon v. Wainwright. This Article argues that the […]

Charles Short, Guilt by Machine: The Problem of Source Code Discovery in Florida DUI Prosecutions

61 Fla. L. Rev. 177 (2009) | | | | ABSTRACT :: Breath testing results stand at the core of most driving under the influence (DUI) prosecutions. Florida law provides that an individual is guilty of driving under the influence when he drives, or is in actual physical control of a vehicle, while under the […]

Dante P. Trevisani, Passenger Standing To Challenge Searches And Seizures: A Distinction without a Constitutional Difference

61 Fla. L. Rev. 329 (2009) | | | | INTRODUCTION :: On November 27, 2001, Deputy Sheriff Robert Brokenbrough noticed a Buick with expired registration tags. After verifying from the police dispatcher that the application for renewal tags was being processed, and therefore the Buick was not in violation of any traffic laws, he […]

Christopher Slobogin, Introduction to the Symposium on the Model Penal Code's Sentencing Proposals

61 Fla. L. Rev. 665 (2009) | | | | INTRODUCTION :: Begun in the 1950s, the drafting of the Model Penal Code (the Code) differed from the typical American Law Institute (ALI) “restatement” of the law project because it was an explicit attempt to provide a model statute that would advance doctrine and practice […]

Kevin R. Reitz, Demographic Impact Statements, O’Connor’s Warning, and the Mysteries of Prison Release: Topics from a Sentencing Reform Agenda

61 Fla. L. Rev. 683 (2009) | | | | INTRODUCTION :: Begun in the 1950s, the drafting of the Model Penal Code (the Code) differed from the typical American Law Institute (ALI) “restatement” of the law project because it was an explicit attempt to provide a model statute that would advance doctrine and practice […]

Douglas A. Berman, The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions

61 Fla. L. Rev. 709 (2009) | | | | INTRODUCTION :: My favorite bit of folk wisdom is “if it ain’t broke, don’t fix it.” However, when considering the ongoing revisions to the Model Penal Code: Sentencing (MPCS) provisions, a corollary comes to mind: “fix what’s really broke, and don’t risk breaking what ain’t […]

Alice Ristroph, How (Not) to Think Like a Punisher

61 Fla. L. Rev. 727 (2009) | | | | INTRODUCTION :: The new sentencing provisions of the Model Penal Code (MPC) forcefully assert the nature of sentencing as judicial province. “One underlying philosophy of the revised Code is that sentencing is, at its core, a judicial function.” Specifically, the new provisions aim to secure […]

Robert Weisberg, Tragedy, Skepticism, Empirics, and the MPCS

61 Fla. L. Rev. 797 (2009) | | | | INTRODUCTION :: I argue here that an important implicit theme of the Model Penal Code: Sentencing (MPCS) Draft (Draft) is what I will call modern tragic skepticism about empirical proof in legal reform. By an admittedly somewhat stretched reading, I will infer from the Draft […]

Nora V. Demleitner, Good Conduct Time: How Much and for Whom? The Unprincipled Approach of the Model Penal Code: Sentencing

61 Fla. L. Rev. 777 (2009) | | | | INTRODUCTION :: Up until the 1970s, indeterminate sentencing dominated sentencing in the United States. This model implied a focus on offender rehabilitation, with the concomitant need for individualized treatment. The American Law Institute’s (ALI) Model Penal Code (MPC), published in 1962, incorporated these assumptions, though […]

David A. Karp, Setting the "Persecutor Bar" for Political Asylum after Negusie: Negusie v. Holder, 129 S. Ct. 1159 (2009)

61 Fla. L. Rev. 933 (2009) | | | | INTRODUCTION :: After night fell in the port city of Massawra, Eritrea, Daniel Girmai Negusie slipped out of the military prison where he had been held for four years. During the day, he hid at a friend’s house; at night, he swam out to container […]

Ellen D. Katz, From Bush v. Gore to Namudno: A Response to Professor Amar

61 Fla. L. Rev. 991 (2009) | | | | INTRODUCTION :: In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, […]

Michael S. Pardo, Second-Order Proof Rules

61 Fla. L. Rev. 1083 (2009) | | | | ABSTRACT :: Proof rules in law dictate when facts have been proven. They do so by specifying a level of proof such as by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The goals of the rules are […]

Alisa Smith & Michael J. Saks, In Honor of Walter O. Weyrauch: The Case for Overturning Williams v. Florida and the Six-Person Jury: History, Law, and Empirical Evidence

60 Fla. L. Rev. 441 (2008) | | | | ABSTRACT :: After 700 years of common-law history and nearly 200 years of constitutional history, the Supreme Court concluded that the constitutionally permissible minimum jury size could not be inferred from the language or the history of the Constitution. The answer, said the Court in […]

Michael J. Hooi, Substantive Due Process: Sex Toys after Lawrence Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007)

60 Fla. L. Rev. 507 (2008) | | | | TEXT :: Appellants filed suit in the U.S. District Court for the Northern District of Alabama to enjoin the enforcement of an Alabama statute that prohibits the commercial distribution of sex toys. Appellants claimed that the statute unconstitutionally burdened their rights to privacy and personal […]

Emily S. Wilbanks, The Murder Rule that Just Won't Die: The Abolished Year-And-A-Day Rule Continues to Haunt the Florida Courts

60 Fla. L. Rev. 735 (2008) | | | | INTRODUCTION :: On October 21, 1986, a two-month-old baby girl was admitted to a hospital in Pasco County, Florida. Baby Christina Ann Wells was unresponsive, was suffering from seizures, and needed assistance to breathe. Doctors observed large bruises on Christina’s head, including thumbprints on her […]

Doug Keller, Resolving a "Substantial Question": Just Who is Entitled to Bail Pending Appeal under the Bail Reform Act of 1984?

60 Fla. L. Rev. 825 (2008) | | | | ABSTRACT :: Under the Bail Reform Act of 1984, federal criminal defendants who wish to remain free on bail after conviction must prove that their appeal will have enough merit to raise at least one “substantial question.” Federal appellate courts, however, have been deeply divided […]

Michael J. Hooi, Qualified Immunity: When is a Loss Ultimately a Win?

60 Fla. L. Rev. 979 (2008) | | | | TEXT :: Scott v. Harris, 127 S. Ct. 1769 (2007) A Georgia sheriff’s deputy clocked Victor Harris driving seventy-three miles per hour in a fifty-five mile per hour zone. After Harris ignored the deputy’s signal to pull over for speeding, the deputy began a high-speed […]

Verity Winship, Fair Funds and the SEC's Compensation of Injured Investors

60 Fla. L. Rev. 1103 (2008) | | | | ABSTRACT :: The Fair Fund provision of Sarbanes-Oxley allows the SEC to distribute money penalties to injured investors, heralding a new compensatory role for the agency. The SEC has announced that it will direct money to injured investors whenever possible, but has not articulated clear […]

Giannina Marin, Possession of Child Pornography: Should You be Convicted When the Computer Cache Does the Saving for You?

60 Fla. L. Rev. 1205 (2008) | | | | INTRODUCTION :: “For years, defense lawyers have argued the ‘young and stupid’ semi-defense for their youthful clients. Now, we can have the ‘I didn’t know it was on the hard drive’ objection for the unsophisticated computer user in child pornography cases-or at least they can […]

Dustin G. Hall, Constitutional Law: What to Do When a State Fails to Take Notice that its Notice has Failed?

59 Fla. L. Rev. 453 (2007) | | | | TEXT :: After Petitioner paid off his mortgage, his annual property taxes went unpaid. Respondent, Commissioner of State Lands, subsequently certified Petitioner’s property as delinquent. Under the applicable state statute, Respondent sent, via certified mail, a notice of delinquency to Petitioner’s property. The notice indicated […]

Lisa A. Mattern, Constitutional Law: Knock-And-Announce Violations and the Purposeful Enforcement of the Exclusionary Rule

59 Fla. L. Rev. 465 (2007) | | | | TEXT :: Officers obtained a warrant to search for drugs and firearms in Petitioner’s home. Although the officers announced their presence, they waited only three to five seconds before entering the unlocked residence. Once inside, they discovered large quantities of drugs and a loaded firearm. […]

Benjamin Robinson, Constitutional Law: Suppressing the Exclusionary Rule

59 Fla. L. Rev. 475 (2007) | | | | TEXT :: Police obtained a warrant to search Petitioner’s home and, after announcing their presence, waited only a short time before they entered and discovered drugs and a loaded gun. The State charged Petitioner with unlawful drug and firearm possession. Petitioner moved to suppress all […]

Michael Nardella, Knowing When to Stop: Is the Punctuation of the Constitution Based on Sound or Sense?

59 Fla. L. Rev. 667 (2007) | | | | INTRODUCTION :: Take another look at the Fifth Amendment. Look carefully. If you read it with an eye toward punctuation, you will notice that the Amendment itself is one long and complex sentence; you will notice that it contains a number of restrictions on governmental […]

Steven F. Shatz, The Eighth Amendment, the Death Penalty, and Ordinary Robbery-Burglary Murderers: A California Case Study

59 Fla. L. Rev. 719 (2007) | | | | INTRODUCTION :: On September 20, 1968, after a one-day trial, a Georgia jury sentenced William Henry Furman to death for a felony-murder committed a year earlier and so set the stage for the Supreme Court’s now thirty-five-year-old effort to regulate and rationalize the states’ use […]

The Honorable Rosemary Barkett, Dunwody Distinguished Lecture in Law: Judicial Discretion and Judicious Deliberation

59 Fla. L. Rev. 905 (2007) | | | | INTRODUCTION :: Thank you for the opportunity to deliver the Dunwody Distinguished Lecture in Law. It is an honor and a privilege to join the extraordinary list of those who have participated in this series of Lectures. Like Elliot and Atwood Dunwody, I am a […]

Natalie Liem, Mean What You Say, Say What You Mean: Defining the Aggravated Felony Deportation Grounds to Target More than Aggravated Felons

59 Fla. L. Rev. 1071 (2007) | | | | INTRODUCTION :: Jose Rodriguez is one of the lucky ones. Rodriguez, a legal permanent resident of the United States since 1990, was arrested in May 2003 for possession of less than one gram of cocaine. Rodriguez pleaded no contest and was sentenced to probation. Nearly […]

Brooke R. Hardy, Criminal Procedure: Finding the Needle-Toward a More Stringent Standard for Effective Assistance of Counsel

58 Fla. L. Rev. 449 (2006) | | | | TEXT :: Petitioner was convicted by a jury of, among other offenses, brutally murdering a local barkeeper. At the sentencing phase of the bifurcated proceeding, Petitioner’s counsel presented the brief testimony of only five mitigation witnesses. Balancing the evidence, the jury found three aggravating factors […]

Steven J. Wernick, Constitutional Law: Elimination of the Juvenile Death Penalty-Substituting Moral Judgment for a True National Consensus

58 Fla. L. Rev. 471 (2006) | | | | TEXT :: Respondent was convicted of first-degree murder for the torturous abduction and drowning of a woman and was sentenced to death upon the recommendation of the jury. Respondent committed these brutal acts as a seventeen year-old high school student. Despite his age, Respondent was […]

J. Richard Broughton, The Second Death Of Capital Punishment

58 Fla. L. Rev. 639 (2006) | | | | INTRODUCTION :: Political life is sometimes tragic. As a conservative instrument for safeguarding the government’s obligation and ability to control the governed (which, as Madison reminds us, is a prerequisite for the exercise of self-control on the part of the government), and for preserving tolerable […]

Jeffrey A. Bekiares, In Country, on Parole, out of Luck-Regulating away Alien Eligibility for Adjustment of Status Contrary to Congressional Intent and Sound Immigration Policy

58 Fla. L. Rev. 713 (2006) | | | | INTRODUCTION :: Immigrants are a daily part of American life. They work in every sector of the economy and form strong social and familial bonds in the community. The legislative and cultural history of the United States has encouraged immigration as a constant source of […]

Chad M. Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation

58 Fla. L. Rev. 743 (2006) | | | | INTRODUCTION :: Concern about so-called “judicial activism” is rampant. Despite a lack of consensus regarding precisely what the term means, those wielding it have in mind judges who overstep the bounds of their role. “Activist” judges usurp the authority of the political branches, decide issues […]

Nicolas Hamann, Florida Constitutional Law: Reducing Legislative Discretion: A Clearly Unclear Application of Expressio Unius

58 Fla. L. Rev. 935 (2006) | | | | TEXT :: The Opportunity Scholarship Program (OSP) provided public school students with the option of transferring to either an eligible private school or to another public school that met certain academic requirements. If the student chose a private school, the State would then issue a […]

Steven J. Wernick, In Accordance with a Public Outcry: Zoning Out Sex Offenders through Residence Restrictions in Florida

58 Fla. L. Rev. 1147 (2006) | | | | INTRODUCTION :: On January 11, 2006, William Smith Jr., a sixty-five-year-old convicted sex offender, moved into a small wooden house behind a day-care center in Ocala, Florida. His housewarming, however, was short-lived. The day after Smith moved in, local police officers arrived at his house […]

Linda Kelly Hill, The Feminist Misspeak of Sexual Harassment

57 Fla. L. Rev. 133 (2005) | | | | INTRODUCTION :: Feminism is out of control. I recently attended an academic conference on domestic violence where, as usual, the speakers and the audience were virtually all women. As is to be expected, one woman or another lamented the lack of male interest in matters […]

Kelly M. Moore, Pretext Instructions in Employment Discrimination Cases: Inferring a New Disadvantage for Plaintiffs: Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004)

57 Fla. L. Rev. 411 (2005) | | | | TEXT :: Petitioner was fired from his position as the commercial fleet sales manager for Respondent’s car dealership in January of 2001. Respondent told Petitioner that he was being fired because although “he was doing a ‘good job’ . . . the company was going […]

Peter Koclanes, Unreasonable Seizure: "Stop and Identify" Statutes Create an Illusion of Safety by Sacrificing Real Privacy: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 431 (2005) | | | | TEXT :: In the course of a lawful stop, police asked Petitioner, Larry Hiibel, to identify himself, a demand permissible under Nevada’s “stop and identify” statute. After refusing to give his name, Hiibel was arrested and subsequently found guilty of violating the “stop and identify” […]

William R. Snyder, Jr., Slipping Down the Slope of Probable Cause: An Unreasonable Exception to What Was Once a Reasonable Rule: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 445 (2005) | | | | TEXT :: Upon receiving a call reporting possible domestic violence, a sheriff’s deputy in Humboldt County, Nevada detained Petitioner under the authority of a state statute allowing an officer to “stop and identify” a person suspected of criminal behavior. During the course of the detention, […]

Diane J. Zelmer, Constitutional Law: Convicting Detainees for Refusing to Answer Law Enforcement's Commonsense Inquiries Makes no Commonsense: Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004)

57 Fla. L. Rev. 459 (2005) | | | | TEXT :: While investigating an assault report, a police officer observed a silver and red GMC truck parked on the roadside with skid marks behind it. Petitioner, who appeared intoxicated, stood outside the truck, and a young woman sat inside the truck. Threatening arrest, the […]

Justin Smith, Post-Conviction Relief under Florida Law: The Undue Process of the Evolutionary Refinement

57 Fla. L. Rev. 653 (2005) | | | | INTRODUCTION :: “We might go further and say that even those laws which have been written down are best regarded as not unchangeable.” Aristotle “[T]hey are . . . promulgated established laws, not to be varied in particular cases, but to have one rule . […]

Marisa Lopez, Professional Responsibility: Tortured Independence in the Office of Legal Counsel

57 Fla. L. Rev. 685 (2005) | | | | INTRODUCTION :: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” Abu Ghraib is one of the world’s most notorious prisons. Under Saddam Hussein, it was the sight of atrocious acts of […]

Robert A. Caplen, Mending the "Fence": How Treatment of the Israeli-Palestinian Conflict by the International Court of Justice at the Hague Has Redefined the Doctrine of Self- Defense

57 Fla. L. Rev. 717 (2005) | | | | INTRODUCTION :: The problem [of Palestine] is mainly one of human relationship and political rights. Few countries have been the subject of so many general or detailed enquires . . . .” While the United States has not been wholly immune from terrorism in recent […]

Heidi Kitrosser, Containing Unprotected Speech

57 Fla. L. Rev. 843 (2005) | | | | INTRODUCTION :: The Supreme Court long has deemed a few categories of speech so harmful and so lacking in value as to be unworthy of First Amendment protection. Under this approach, which this Article calls categorization doctrine, legislatures may regulate-even ban-unprotected speech categories in their […]

Jeffrey A. Bekiares, Constitutional Law: Ratifying Suspicionless Canine Sniffs: Dog Days on the Highways

57 Fla. L. Rev. 963 (2005) | | | | TEXT :: Respondent, a motorist on an Illinois highway, was arrested and charged with one count of cannabis trafficking in contravention of chapter 720, section 550/5.1(a) of the Illinois Code. An Illinois State trooper pulled Respondent over for traveling 6 miles per hour in excess […]

Michelle Reiss Drab, Constitutional Law: Fact or Factor: The Supreme Court Eliminates Sentencing Factors and the Federal Sentencing Guidelines

57 Fla. L. Rev. 987 (2005) | | | | TEXT :: A jury convicted Respondent Booker of possession with intent to distribute at least fifty grams of cocaine, an offense carrying a sentence of 210 to 262 months in prison according to the Federal Sentencing Guidelines (the “Guidelines”). At a later sentencing hearing, the […]

Daniel Ryan Koslosky, Constitutional Law: Predictability As Fairness And The Possible Return To Federal Indeterminate Sentencing

57 Fla. L. Rev. 999 (2005) | | | | TEXT :: Respondent was convicted by a jury of possession with intent to distribute at least fifty grams of crack cocaine. During postconviction sentencing, the district court judge found, by a preponderance of evidence, that Respondent possessed an additional 566 grams of crack cocaine and […]

Christopher Wolfe, Moving Beyond Rhetoric

57 Fla. L. Rev. 1065 (2005) | | | | TEXT :: William Eskridge’s Body Politics: Lawrence v. Texas and the Constitution of Disgust and Contagion is an unusually rhetorical piece. At times it appears that Eskridge thinks that if he characterizes his opponents’ position as one of “disgust” and fear of “contagion” often enough […]

Diane Lourdes Dick, Constitutional Law: Reaffirming Every Floridian's Broad and Fundamental Right to Privacy

56 Fla. L. Rev. 447 (2004) | | | | TEXT :: In 1999, the Florida Legislature passed the Parental Notice of Abortion Act (the Act), which required minors seeking an abortion to either notify a parent prior to the procedure or obtain court approval to waive parental notice. A minor choosing the latter option […]

Blake J. Delaney, A Cruel and Unusual Application of The Proportionality Principle in Eighth Amendment Analysis

56 Fla. L. Rev. 459 (2004) | | | | TEXT :: Petitioner, Gary Ewing, while on parole, stole three golf clubs valued at approximately $ 1200 from a pro shop. Respondent, the State of California, charged Petitioner with felony grand theft of personal property. The Los Angeles County Superior Court convicted Petitioner of the […]

Daniel J. Steinbock, National Identity Cards: Fourth and Fifth Amendment Issues

56 Fla. L. Rev. 697 (2004) | | | | INTRODUCTION :: In the frenzied days and weeks following September 11, 2001, many observers called for serious consideration of a national identity system, the centerpiece of which would be some form of national identity card. Such a system was seen mainly as a tool against […]

Viet D. Dinh, Dunwody Distinguished Lecture in Law: Nationalism in the Age of Terror

56 Fla. L. Rev. 867 (2004) | | | | INTRODUCTION :: September 11, 2001 was a wake up call. Many of us, however, are still asking ourselves exactly what we woke up to and how it should define our domestic and foreign policy. Appreciating the exceptional nature of the threat, the government has embarked […]

Maxwell O. Chibundu, For God, for Country, for Universalism: Sovereignty as Solidarity in our Age of Terror

56 Fla. L. Rev. 883 (2004) | | | | INTRODUCTION :: “Nations and peoples can lose their heads.” On September 11, 2001, three hijacked jet airliners deliberately were crashed into buildings in New York City and Washington, D.C. A fourth aircraft, apparently intended for the same purpose, crashed into a field in Pennsylvania. The […]

Amitai Etzioni, On the Need for more Transnational Capacity

56 Fla. L. Rev. 921 (2004) | | | | INTRODUCTION :: Professor Dinh raises the right issue highlighted by the 9/11 Commission: what should be the post-Cold War organizing principle for the global order? Historians may well consider the period between 1989 and 2001 a confused interim, in which it was unclear what would […]

Winston P. Nagan & Craig Hammer, Patriotism, Nationalism, and the War on Terror: A Mild Plea in Avoidance

56 Fla. L. Rev. 933 (2004) | | | | INTRODUCTION :: “Terrorism is a global menace which clearly calls for global action. Individual actions by Member States, whether aimed at State or non-state actors, cannot in themselves provide a solution. We must meet this threat together.” -Kofi Annan “Major Strasser has been shot. Round […]

Jordan J. Paust, Tolerance in the Age of Increased Interdependence

56 Fla. L. Rev. 987 (2004) | | | | INTRODUCTION :: For several reasons, I hope that you will be a relatively tolerant reader. I am not sure that I can offer insights that an experienced psychiatrist or sensitive moral philosopher might lend to a discussion of love, loyalty, nationalism, patriotism, and what most […]

John Quigley, Identifying the Origins of Anti-American Terrorism

56 Fla. L. Rev. 1003 (2004) | | | | INTRODUCTION :: Professor Dinh’s analysis is directed at identifying the instrumentalities that, in his view, should cope with terrorism. His analysis is an important piece of the puzzle. Professor Dinh argues that it is nation-states, acting collectively, that should respond to terrorism, and his article […]

David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures

56 Fla. L. Rev. 1051 (2004) | | | | INTRODUCTION :: Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities. In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement […]