2010 Census Information
This March, the 2010 Census will arrive in every Gainesville resident’s mailbox. The responses will directly affect the distribution of more than $400 billion in federal funding for education, healthcare, transportation and the environment. Off-campus students must fill out the form with their housemates and return it by mail before April 1. It is important that everyone in Gainesville fill out the census form to ensure funding that will help keep The Gator Nation great.

• “An attempt to revive the lost art of apology” (Jan. 30, 2010, New York Times)
  Cohen explained that an accident involving a senator’s daughter was the impetus for legislation that allows people to say they are “sorry” without worry of law suits for admission of guilt. In fact, it was a traffic accident in the 1970s that led politicians to try to resolve some of these problems. According to Jonathan R. Cohen, a law professor at the University of Florida, a Massachusetts state senator’s daughter was killed while riding her bicycle, and the driver who hit her never apologized. The father couldn’t believe that the driver had never expressed contrition, Professor Cohen said, and was told that the driver had dared not risk even saying “I’m sorry,” because it could have been seen as an admission in the litigation surrounding the girl’s death. When the state senator retired, he worked with his successor to introduce and win passage of legislation that allowed a “safe harbor” for people to offer “benevolent gestures expressing sympathy or a general sense of benevolence,” said Professor Cohen, who has written extensively on the intersection of law and apologies Now, a majority of states have enacted “I’m sorry” laws — some that address just medical malpractice, while others apply to all civil cases.

Ware is a professor of law at the University of Kansas School of Law, where he teaches courses in alternative dispute resolution, bankruptcy, contracts, sales, and secured transactions. Ware received his Juris Doctor from the University of Chicago Law School and has since penned two books, numerous law review articles and other publications, and has served as a professor and visiting professor at several law schools nationwide.

Although Ware did not actually argue that trials should vanish, he instead advocated for the elimination of publicly-funded trials for wealthy corporate parties to better re-route resources to the parties in the greatest need, such as criminal defendants awaiting freedom and tort victims awaiting relief.

Ware explained that the term “alternative dispute resolution” applies to three processes: negotiation, mediation, and arbitration. When there is a dispute, Ware explained, the parties are faced with whether to litigate or settle via negotiation or mediation. In criminal trials, plea bargains serve the function of avoiding litigation in favor of two oppositional parties working collaboratively to reach a mutually satisfactory resolution, Ware said.

Ware declared that while trials would theoretically vanish if all parties in all cases chose to settle, he is under no illusion that this will occur.

Conversely, Ware stated that if all disputes were settled by trial, the justice system would be congested far beyond its capacity to function.

Therefore, “settlement is a practical necessity for our system to work,” Ware stated.

Ware conjured the popular adage “justice delayed is justice denied” and suggested that if unlimited resources were allocated to the court system, then the administration of justice would occur more efficiently and more swiftly and all parties could be afforded a trial. Realistically, however, it is the increased use of alternative dispute resolution that may help aid the swift administration of justice, Ware said.

He posited that then innocent criminal defendants may be freed sooner, civil plaintiffs may be compensated sooner, and the quality of available evidence could be preserved. Also, litigation would become less expensive since it would be conducted over a shorter period of time. Additionally, expedited litigation would reduce the use of what Ware termed the “wait ‘em out” strategy often used by more resourceful litigants to the detriment of their smaller, less wealthy opponents.

According to Ware, the question should not be “who gets a trial?” but rather “who gets adjudication subsidized by the taxpayer?”

Ware advocated rearranging court dockets to give priority to criminal cases and civil cases which involved individuals rather than wealthy corporations, to encourage businesses to turn to arbitration. Ware acknowledged that it would likely be unconstitutional to tell such corporations that trials were not available to them at all, but that he saw no constitutional barriers to reordering court dockets such that their cases could simply be placed “at the back of the line” behind other criminal and tort cases.

Riskin called Ware’s proposal generally a “terrific idea” and agreed that Ware’s plan could reduce the strategy of delay which is often used to drive up the cost of litigation to try to force one side to settle. Riskin, however, focused on the benefits of alternative dispute resolution beyond the financial benefits that Ware discussed, including creating a less traumatic process that includes non-legal interests and concerns, such as the emotional well-being of the parties.

The most controversial issue among academics, with respect to the law of arbitration, Riskin stated, is that many people unwittingly consent to arbitration via the purchase of a computer, car, or other product without realizing that within the fine print of their paperwork is a binding arbitration clause.

Following Riskin’s remarks, Ware concluded his presentation with the suggestion that arbitration could also aid in the administration of justice since parties can choose an arbitrator with special expertise and an arbitrator can go to the site of the dispute and view evidence that would not be available for first-hand viewing to judges and juries.

Bob Rhodes, a former growth management administrator for the state of Florida, will talk about “Growth Management Policy: The State, The People and the Future,” at 7 p.m. in the Pugh Hall Ocora.

Currently the counsel to the law firm Foley & Lardner LLP, Rhodes chaired the Mayor’s 2006 Growth Management Task Force in Jacksonville and is a past chairman of the Florida Bar Environmental and Land Use Law Section. He also chairs the Northeast Florida Regional Council’s Regional Community Institute.

Rhodes recently described a controversial growth regulation amendment on the 2010 ballot as the “elephant in the growth management policy room.” Amendment 4 would require that all local government Comprehensive Plans and plan amendments be approved by voter referendum before becoming effective, part of a wider direct democracy movement that gives citizens a larger say in land use planning.

In what some described as a bid to “boost growth,” the Florida Legislature rolled back much of the state’s growth management laws in the past session. It was the latest move in debate that has raged for decades over the negative effects of unplanned growth.

Business groups insist continued development is necessary to revive the state’s moribund economy, while environmentalists point to the devastation to the Everglades, rivers and forests, as well as the huge number of empty, foreclosed developments blighting many metropolitan areas.

Amendment 4 would require referendums at the local level for virtually every growth plan. Opponents say it would be costly and unworkable, strapping local leaders with lawsuits, while supporters stress the freedom it gives citizens over unresponsive bureaucracies.

This program is being sponsored with the support of the Center for Governmental Responsibility at the University of Florida’s Levin College of Law and Women for Wise Growth, an Alachua-county-based political action committee. CGR Director Jon Mills will introduce the program.

For more information about this event, visit the Graham Center Web site at www.graham.centers.ufl.edu

On Jan. 28, the Levin College of Law hosted a Human Trafficking Symposium, which included a presentation by Dr. Luz E. Nagle and a panel discussion featuring local Alachua County experts explaining the scope of human trafficking in Alachua County. The symposium served as the capstone presentation to a week-long initiative sponsored by LexisNexis, CARIB-LAW, the Immigration Law Association, and the Association for Public Interest Law to foster awareness and discussion among the law school community.

Nagle, professor of law at Stetson Law School and a former judge in Colombia, presented a lecture titled, “Impact of Globalization on Human Trafficking: An Era of Globalized Servitude,” in which she provided a comprehensive overview of the international problem of human trafficking, and how disintegrating borders and intermingling economies have made human trafficking more common.

Nagle defined human trafficking as a crime against a person being transported into a foreign country or to another location within his or her home country. The person being moved either does not consent to being moved, or his or her consent has been obtained through coercion or deception. Nagle also explained that the victim is not free to leave and may be told that he or she owes a debt to the captor, which may be paid off only through labor or sexual servitude.

“This is a crime that crosses nations’ borders. What we see today is that organized crime has benefited from what we call ‘globalization,’” Nagle explained, urging that “international cooperation becomes crucial.”

What may have come as surprising to many audience members is that the United States is one of the top destination countries for human trafficking, Nagle stated.

Perhaps even more shocking is that human trafficking abounds even in Alachua County.

Following Nagle’s presentation, Levin College of Law Professor Kenneth Nunn served as moderator for a panel discussion composed of Gregory McMahon, U.S. Attorney for the Northern District of Florida, Dr. Sherry Kitchens, President / CEO of the Alachua County Human Trafficking Task Force, and Detective Tyson Elliot, of the Alachua County Special Victims Unit for Human Trafficking Division. The panelists discussed the prevalence of human trafficking in Alachua County.

McMahon discussed the issue of diminished credibility when a child victim of human trafficking testifies against an adult male who denies any involvement in a crime. He also discussed the difficulties concerning human trafficking which are unique to undocumented immigrants. These difficulties include language barriers as well as the constant threat of deportation that their captors may wield over them as leverage to prevent them from contacting law enforcement. McMahon emphasized strong prosecution as key to stopping human trafficking.

Elliot emphasized the importance of proactive law enforcement in ensuring that proper legal consequences are enforced. In a hypothetical case of an adult male paying for sex with a fifteen-year-old prostitute, Elliot said that some counties would respond by charging both the man and the girl with misdemeanor prostitution, rather than addressing the possibility of human trafficking and seeking help for the girl.

Kitchens shared a story of a thirteen-year-old victim of child sex trafficking that she treated in her capacity as a counselor. Although she once escaped sexual servitude, the girl was later found again by her former pimp and forced back into the world of human trafficking. Kitchens used the story to show how easily victims are drawn back into sex trafficking, and how tenacious their captors can be.

During the question and answer session, one audience member asked a poignant question: “what can I do to help?”

In response, Elliot advised consulting the Health and Human Services Web site or the Alachua County Sheriff Department’s Web site if one has information regarding a suspected human trafficking situation which does not require immediate attention, but instead necessitates further investigation. Kitchens advocated community awareness of human trafficking, such that community members will be more vigilant in noticing the signs that someone may be a victim.

Professor Nunn concluded the panel discussion by echoing Kitchens’ sentiments and expressing hope that if a community is informed about human trafficking and offers services to victims, perhaps victims who are able to come forward will be encouraged to do so and break free of the entrapment of slavery.

Dr. James McClave, president and founder of Info Tech, gave a brief introduction about Heath, whom he worked with since 1990. McClave described Heath as innovative, passionate, irreplaceable and determined.

“When Wick got his teeth into an antitrust case, the bad guys had no chance,” McClave said. “There were no eight hour days for Wick, whether he was working for a state agency or for Info Tech. He was an around-the-clock kind of a guy once he got into a case.”

After the introduction, McClave turned the floor over to Hovenkamp, who spoke about the Federal Trade Commission and the Sherman Act. Hovenkamp gave a brief introduction to the FTC as background for his lecture. The FTC was created in 1914 to identify and condemn unfair methods of competition. The FTC consists of five commissioners and no more than three can be members of the same political party.

“Congress chose not to create an elaborate code of behavior but rather to condemn ‘unfair methods of competition’ and give these commissioners a very broad amount of discretion to determine what would constitute an unfair method of competition,” said Hovenkamp, 2008 Department of Justice Antitrust Division John Sherman Award recipient and principal author of Areeda & Hovenkamp, Antitrust Law, the leading treatise and the field.

Over the years, the FTC’s powers have been expanded to be broader than the Sherman Antitrust Act, which was enacted in 1890 to regulate competition and monopolies. This approach is historically justified and approved by the Supreme Court, but there are positives and negatives to the expansive powers, Hovenkamp argued.

Hovenkamp used the Brown Shoe Case to demonstrate when the FTC overstepped its boundaries in his opinion. Brown Shoe had a quasi-exclusive dealing contract which was nothing more than an efficient method of distribution, Hovenkamp said. But the FTC enjoined the practice despite the fact that the practice was not at all competitively harmless but it also would have benefitted consumers.

“Reaching beyond what the Sherman Act reaches is likely to condemn practices that are not economically harmful and might even benefit consumers,” Hovenkamp said. “Historical experience provides considerable warrant for the proposition that when the FTC reaches beyond the Sherman Act, it is treading into dangerous territory where it’s more likely to do harm than good.”

The arguments for the FTC having expansive power include an incipiency concern, which would stop potentially harmful practices before they get too serious. There is no incipiency clause in the Sherman Act. Another benefit to the FTC having broad authority is that the FTC uses expert judges over regular circuit judges and its evidentiary rules are more flexible. Further, if the FTC uses its own laws instead of antitrust laws, their injunctions cannot be used as prima facie evidence in a civil case.

For these reasons, Hovenkamp sees the need for the FTC to go beyond the Sherman Act, but it must be careful when it exercises this authority, he said.

“I believe there is serious merit to many of these propositions. The FTC should expand its reach to bring in some conduct that does not fall within the coverage of the Sherman Act and Clayton Act as currently interpreted by the Supreme Court,” he said. “In doing so, however, the FTC needs to be mindful of one thing that has often alluded it. Practices that it condemns must really be anti-competitive in a meaningful sense. That is, there must be some basis for thinking that the practice either does or will lead to reduced output and higher consumer prices or lower quality in the effective market.”

The Heath Memorial Lecture Series was made possible by a gift from Inez Heath, Ph.D., widow of Bayard “Wick” Heath. Before his death in 2008, Heath was the senior competition consultant with Info Tech, a Gainesville firm specializing in statistical and econometric consulting, expert witness testimony and antitrust law.

Prominent federal courts scholar, John C. Jeffries Jr., the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, will discuss this and more when he delivers the 29th annual Dunwody Distinguished Lecture at the University of Florida Levin College of Law.

The lecture, “Rationalizing Qualified Immunity,” is organized by the Florida Law Review and is free and open to the public. It will be held Tuesday, Feb. 16 at 11 a.m. in UF Law’s Chesterfield Smith Ceremonial Classroom (room 180). To view the lecture via webcast, visit www.floridalawreview.com.

“It is a great honor to be invited to UF to give the nationally-known Dunwody Lecture,” said Jeffries, who served as dean of UVA School of Law 2001-2008. “My lecture will examine why qualified immunity, the doctrine that shields police officers and others from paying damages for violating constitutional rights, is notoriously unstable and difficult to administer. I plan to outline the problems with qualified immunity in an effort to make first steps toward reformulating this controversial doctrine.”

The qualified immunity doctrine protects government officials from liability for civil damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” To determine whether an official is entitled to qualified immunity, the court must (1) identify the specific right allegedly violated; (2) determine whether the right was “clearly established;” and (3) determine whether a reasonable officer could have believed that his or her conduct was lawful.

Jeffries is a graduate of the UVA School of Law, where he was editor in chief of the Virginia Law Review and the recipient of the Z Award for the highest academic averages and the Woods Prize for Outstanding Graduate. Upon graduation, Jeffries clerked for U.S. Supreme Court Associate Justice Lewis F. Powell Jr. and later served as a second lieutenant in the U.S. Army.

In 1975, Jeffries joined the UVA School of Law faculty, where his primary research and teaching interest included civil rights, federal courts, criminal law and constitutional law. In 1986, he was appointed the inaugural Emerson Spies Professor of Law and later served as academic associate dean, acting dean and dean until 2008.

“The Florida Law Review is honored to host Dean Jeffries as this year’s Dunwody Lecturer,” said Jon M. Philipson, editor in chief of the Florida Law Review. “As state actions develop in new and unexpected ways, the issue of sovereign immunity becomes even more important to future litigation. There is no one better than Dean Jeffries to bring clarity to this area of the law.”

The Dunwody Distinguished Lecture Series was established by the U.S. Sugar Corporation and law firms of Dunwody, White & Landon, and Mershon, Sawyer, Johnson, Dunwody & Cole in honor of UF Law graduates Elliot (JD 33) and Atwood (JD 33) Dunwody, two brothers who dedicated their lives to the legal profession and labored to better social and economic conditions in Florida.

A distinguished group of national and state experts will be on hand 8:30 a.m. to 4 p.m., Friday, Feb. 12, at the UF Hilton Conference Center in Gainesville, Fla., to discuss “Local Government Liability Under Federal Law: Regulating the Sacred and the Profane.” Presentation topics include First Amendment problems posed by the land use regulation of adult businesses, challenges posed to zoning authorities by the Religious Land Use and Institutionalized Persons Act, and constitutional pitfalls involved in crafting and enforcing residential restrictions for sex offenders. The symposium is free for UF faculty, staff and students.

“Especially during these times of intense fiscal distress for all levels of government, it is important for local government attorneys and their public clients to learn important lessons from cases and conflicts in which litigants have used federal statutory and constitutional provisions to challenge land-use decision making and other local regulations,” said Michael Allan Wolf, UF College of Law Richard E. Nelson Chair in Local Government, and organizer of the event. “This symposium will be a great opportunity to learn about the latest modes and theories of attack and defense.”

Presenters include Ashira Ostrow, associate professor, Hofstra Law School; Asmara M. Tekle, associate professor, Thurgood Marshall School of Law, Texas Southern University; Alan C. Weinstein, associate professor, Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs, Cleveland State University; Marie Hartman, city attorney, Daytona Beach, Fla.; Steven J. Wernick, attorney, Bilzin Sumberg, Miami, Fla.; Franklin Zemel, attorney, Arnstein and Lehr, Ft. Lauderdale, Fla.; and UF Law J.D. candidates, Tara Nelson and Dwayne Robinson.

To view the symposium agenda, visit www.law.ufl.edu/news/events/pdf/NelsonSymposium10.pdf. For more information, contact Barbara DeVoe at 352-273-0615 or devoe@law.ufl.edu.

The symposium is named to honor Richard E. Nelson, who served with distinction as Sarasota County attorney for 30 years, and his wife, Jane Nelson, two loyal UF alumni who gave more than $1 million to establish the Richard E. Nelson Chair in Local Government Law, which sponsors the annual event. Their support of the Levin College of Law’s Environmental and Land Use Program has been key to the program’s success and national recognition for excellence.