Are there valid secular public policy arguments against the legalization of same-sex marriage? Is the failure to legalize same-sex marriage one example of our society’s discrimination against the LGBTQ community? Will the adoption of same-sex marriage weaken the government’s ability to facilitate and incentivize procreative relationships between heterosexual couples? The UF Federalist Society and OUTLaw present a civil discourse on same-sex marriage Wednesday at noon in the Chesterfield Smith Ceremonial Classroom, HOL 180, with Professor Richard Esenberg of Marquette University Law School and UF Law Professor Rachel Rebouché.

Come hear a discussion on secular arguments for and against the legalization of same-sex marriage. Free Publix subs and chicken tenders for attendees.

About the speakers:
Professor Richard Esenberg currently teaches at Marquette University Law School. For the past ten years, Professor Esenberg served as vice president and general counsel of Rite Hite Holding Corporation in Milwaukee. From 1981 to 1997, he was an associate and then partner at Foley & Lardner. Esenberg has overseen international acquisitions and business expansions throughout Europe, Latin America, and Canada. Esenberg holds a J.D., magna cum laude, from Harvard Law School, where he was an editor of the Harvard Law Review, and a B.A., summa cum laude, in political science from the University of Wisconsin-Milwaukee. He teaches Civil Procedure, Election Law, Wisconsin Supreme Court and Law and Theology.

Professor Rachel Rebouché is an assistant professor of law at the University of Florida Levin College of Law. She received her J.D. from Harvard Law School where she was the editor-in-chief for the Harvard Journal of Law and Gender. She received her LL.M. from Queen’s University, Belfast, and her B.A. from Trinity University. Rebouché has worked as the associate director of Adolescent Health Programs, and was a law clerk to Justice Kate O’Regan of the Constitutional Court of South Africa. She is currently associate director at the UF Law Center for Children & Families, an advisor for the Family Law Society, and an affiliated faculty for the Center for Women’s Studies & Gender Research. In 2012, Rebouché received 1 of only 10 campuswide UF Excellence Awards for assistant professors. She joined the UF law faculty in 2010.

Center for the Study of Race and Race Relations hosts open house

The CSRRR will host an open house Wednesday from 12:30 – 1:30 p.m. in the CSRRR meeting room, HOL 370D.

Glasser Barbecue slated for Oct. 9

The Levin College of Law is holding a free barbecue for all students, faculty and staff Tuesday, Oct. 9, from 11:30 a.m. to 1 p.m. in the Marcia Whitney Schott Courtyard. The food is from Hill’s Bar-B-Que in Gainesville and the event is sponsored by the Gene K. and Elaine Glasser Endowment. The Glassers, who are both UF alumni, have sponsored the event for the past several years. They hope the annual event will foster a greater sense of community among people at the law school. “The law school education I received at the University of Florida has greatly influenced my professional and personal life, creating lasting memories with my friends,” said Gene Glasser, a Fort Lauderdale attorney who received his juris doctor degree from UF Law in 1972. The event is a great chance for incoming students to get to know one another and feel like a part of the law school community. During the event, the Office of Communications will post photos on the UF Law Facebook page and we invite attendees to submit their comments on the photos to thank the Glassers for their contributions to the law school.

Join UF Oct. 12 to honor black leadership

• Leadership and Law: Diverse Perspectives on the Role of Race and Participation in Professional Legal Organizations (CLE Credit Anticipated), 12-2:30 p.m., Friday, Oct. 12, UF Law Martin H. Levin Advocacy Center. Welcome reception and luncheon noon-1 p.m.; panel presentation 1-2:30 p.m. with leaders from national, state, and local bar associations discussing how race has influenced the past, present, and future of their respective organizations in order to foster a dialogue on avenues for leadership and joint initiatives that transcend racial and other divides. Funded by The Florida Bar in cooperation with the 8th Judicial Circuit Bar Association, the Josiah T. Walls Bar Association and Center for the Study of Race and Race Relations. RSVP here.
• A celebration honoring the 50th Anniversary of the Graduation of the University of Florida and Levin College of Law’s First Black alumnus: W. George Allen, featuring presentations by W. George Allen and other honored guests, 3 to 4:30 p.m., Friday, Oct. 12, 2012, Chesterfield Smith Ceremonial Classroom (180 HOL). Co-sponsored by the University of Florida Alumni Association and Association of Black Alumni, Levin College of Law & Center for the Study of Race and Race Relations. Read more.

Harvard law professor discusses same-sex marriage at Weyrauch Lecture Oct. 18

The Weyrauch Distinguished Lecture in Family Law will feature Harvard Law School Professor Janet Halley on “Traveling Marriage: Why the Campaign for Same Sex Marriage Gets Marriage Wrong,” Thursday, Oct. 18, at noon in the Chesterfield Smith Ceremonial Classroom, HOL 180. Hosted by the Center for Children and Families, this lecture was established in honor of Professor Walter O. Weyrauch, internationally known for his work in foreign and family law. Professor Weyrauch joined the UF Law faculty in 1957 as associate professor. He became professor in 1960, was Clarence J. TeSelle Professor 1989-94, and became Stephen C. O’Connell Chair in 1994 and distinguished professor in 1998. A reception will follow the lecture.

Halley is the Royall Professor of Law at Harvard Law School. She teaches courses in family law, comparative family law and sexuality, and legal theory. Before teaching at Harvard, she was professor of law at Stanford Law School (1991-2000) and assistant professor of English at Hamilton College (1980-85). She has a Ph.D. in English from UCLA (1980) and a J.D. from Yale Law School (1988).

Her books include After Sex? On Writing Since Queer Theory, co-edited with Andrew Parker (Duke University Press 2011); Split Decisions: How and Why to Take a Break from Feminism (Princeton University Press 2006); Left Legalism/Left Critique, co-edited with Wendy Brown (Duke University Press, 2002); Don’t: A Reader’s Guide to the Military’s Anti-Gay Policy (Duke Univ. Press, 1999); and Seeking the Woman in Late Medieval and Renaissance Literature: Essays in Feminist Contextual Criticism, co-edited with Sheila Fisher (University of Tennessee Press, 1989). Her current projects include a handbook, What’s Not to Like about Sexual Harassment Law; a paper comparing family law systems entitled “Travelling Marriage;” and a critique of the rules about sexual violence in war established by the ad hoc courts convened to adjudicate war crimes in Rwanda and the former Yugoslavia.

Criminal Justice Center, Criminal Law Association hosts criminal video-advocacy competition

The Criminal Justice Center and the Criminal Law Association is pleased to host its inaugural criminal video-advocacy competition this fall. The competition solicits submissions by student teams of an original, creative and educational video portrayal of Fourth Amendment issues geared toward a college-student audience

• Cash prizes will be awarded for first through third places.
• All law students enrolled at the Levin College of Law are eligible to enter.
• Deadline for submissions is Oct. 22. Winners will be announced on Nov. 10.
• The submissions will be evaluated by members of a judging panel; criteria include clarity of thought, well-structured argumentation, creative use of videography and liveliness of expression.

Decisions of the judging panel will be final. Complete rules of the competition are available at the CJC website (www.law.ufl.edu/academics/centers/cjc) or can be obtained from Eva Achero in Room 100, Bruton-Geer Hall.

Applications open for 2013 Evan Yegelwel Summer Fellowship

The Evan Yegelwel Summer Fellowship award permits one UF Law student to participate in a paid Summer Fellowship Program at the Anti-Defamation League (ADL), Florida Regional Office in Boca Raton. The Yegelwel Summer Fellowship award is $4,000. The ADL is a premier national civil rights organization that fights anti-Semitism and all forms of bigotry in the U.S. and abroad, combats international terrorism, probes the roots of hatred, comes to the aid of victims of bigotry, develops educational programs, and serves as a public resource for government, media, law enforcement, all toward the goal of countering and reducing hatred. A generous gift from Evan Yegelwel (JD 80) has made this fellowship possible. Yegelwel is a partner in the Jacksonville law firm of Terrell Hogan Ellis Yegelwel, P.A. Click here for more fellowship and application information.

Austin Nimocks, senior legal counsel for the Alliance Defense Fund, debated Danaya Wright, UF Research Foundation and Clarence J. TeSelle Professor of Law, over the Defense of Marriage Act in a Federalist Society event last month. UF Law Professor Lyrissa Lidsky, right, served as moderator. (Photo by Nicole Safker)

The University of Florida Levin College of Law has welcomed a number of prominent figures to speak on campus, including retired U.S. Supreme Court Justice Sandra Day O’Connor and former Special Representative of the United Nations Secretary General on Human Rights Defenders Hina Jilani, since the start of the fall semester.

And almost weekly, the UF Law Federalist Society has hosted notable academic and policymakers, enriching campus discussion and debate on controversial issues such as gun rights, affirmative action, same-sex marriage, environmental regulations and racial profiling. Each semester the society puts together a series of speakers that are experts in their field.

It also invites members of the judiciary to offer comments on their role in the judicial system, and two judges from the U.S. Court of Appeals for the 11th Circuit, Gerald B. Tjoflat and William H. Pryor Jr., accepted the society’s invitation to meet with UF Law students this semester.

“The large group of speakers we are able to invite represents a broad range of opinions on different issues, opinions that usually stem from a constitutionally or politically conservative or libertarian viewpoint,” said Jordan Pratt (3L), co-president of The UF Federalist Society.

The society is privately funded, which allows it to attract some of the top legal minds in the country in pursuit of its goal to increase discourse on important legal topics.

Pratt added that these speakers supply students with perspectives in addition to the views that are presented in the classroom. All forums are open to student questions.

“Our interests are aligned with those of the university at large,” said Pratt, referencing the society’s goals of fostering an intellectual atmosphere on campus and giving students exposure to distinguished guests.

The final speaker for the fall semester on Wednesday will feature Jeffery Clark, a partner at Kirkland & Ellis LLP in Washington, D.C. He worked as deputy assistant attorney general for the Environment and Natural Resources Division of the Justice Department and will discuss climate change and trade legislation.

Jeffrey J. Ventrella presents a speech regarding the federal government's treatment of religion. (Photo by Joey Springer)

When considering how the federal government should treat religion, it is important to look at the historical context behind the Constitution to truly understand the intent of the nation’s founders, said the senior vice president of a legal alliance dedicated to defending religious freedom at the University of Florida Levin College of Law Advocacy Center last week.

Jeffery J. Ventrella’s presentation, “What’s God got to do with it?: The Prima Facie Propriety of Public Religious Expression,” was sponsored by the UF Federalist Society and The John Templeton Foundation.

Ventrella explored the topic of the public expression of religion, examining the historical context of the Constitution and the intent of those who framed the religion clause of the First Amendment. The discussion also focused on displays of the Ten Commandments in public venues.

“The question I want to begin with is, ‘Is it obviously the case that displaying the Decalogue is unconstitutional?’” Ventrella said.

He continued by asking whether the Constitution is neutral toward religion, negative toward religion or if it nurtures the public expression of religion.

“I think if we look at the text of the Constitution within its own context historically, we’ll find that there’s a prima facie propriety of public religious expression,” he said.

Ventrella pointed out that there are four separate references to a God or a supreme being in the Declaration of Independence – a key founding document and one to which the Constitution refers.

Additionally, the source material for the Constitution is derived partially from Christian texts, he said. Nine percent of the ideas, quotations and allusions are taken from the Apostle Paul’s teachings; more than Montesquieu or John Locke.

Ventrella explored other instances where the federal government and religion crossed paths, including the Northwest Ordinance of 1789, which stated that as part of the qualifications for a territory to become a state, they must establish publicly funded schools “that teach religion, morality and knowledge,” he said.

He also explained that the “No Religious Test Clause” in the Constitution was not intended to necessarily keep religious views out of government, but rather it was meant to allow people from different Christian sects to work together without their particular denominations causing conflict.

The “Sundays Excepted” clause in the Constitution also seems to acknowledge the influence and importance of religion for those in federal government by not working on the Christian Sabbath. The clause states that the president has 10 days, excluding Sunday, to review legislation.

“The Capitol building, treasury building, war building were places that the federal government permitted religious worship on Sundays,” Ventrella said, which would have made it difficult for much work to be accomplished on that day anyway.

“Separation of church and state? Well, either someone didn’t get it then or someone doesn’t get it now,” he said.

Ventrella then turned to more recent developments, examining two Supreme Court rulings regarding the public display of the Ten Commandments; one ruled in favor and one ruled against displaying the documents in public venues.

“Which one comports with the text and which one comports with the context?” he asked.

In the case of McCreary County v. ACLI of Kentucky, the public display of the Ten Commandments was determined to be unconstitutional. Ventrella said the ruling was based primarily on the court’s determination that there was religious intent behind the display.

“Does the mere reference of acknowledgment to religion comprise establishment?” Ventrella asked. “I don’t think so. I think there’s a key distinction that was missed by the court. I think when a nation forms and decides that rights exist and then it seeks to distinguish itself from other nations, why can’t it state the world view or principles or assumptions that the founders believed whether true or not?”

Conversely, in Van Orden v. Perry, the court ruled that publicly displaying the Ten Commandments did not violate the Constitution because the overall display conveyed a religious and secular message.

Besides Van Orden having a limited legislative history and the fact that the display was financed and donated by a private group, a big deciding factor was the court’s finding that the display was a passive monument, Ventrella said.

Next, Ventrella discussed the importance of remembering that a person’s rights do not come from the state. He warned against that type of thinking, which can lead down a dangerous road toward a totalitarian or communist state. The state exists to protect our rights, which are inalienable, according to the Declaration of Independence, he said.

“Do we want to airbrush away the history, tradition and other things? Or do we want to live in ignorance like they did in the Soviet Union, or do we say ‘no, this comports with our history and traditions’?” Ventrella asked.

“So what’s God got to do with it?” Ventrella asked in closing, “I would say everything if you’re going to answer this question correctly.”

Stephen C. O’Connell Chair and UF Professor of Law Lyrissa Lidsky gave a brief commentary following Ventrella’s discussion.

Lidsky agreed with Ventrella that the nation’s founders did not view symbolic support for Protestantism as being in conflict with the Establishment Clause of the First Amendment.

She also addressed the concept of government neutrality on religion, acknowledging that neutrality can be defined in different ways, but she settled on a definition by University of Virginia Law Professor Doug Laycock, which holds that there should be no coercion or persuasion for or against any particular religion by the government.

“On a personal note, I think that when the government starts sponsoring religion and even sponsoring Christianity, it sends a message to all of us who aren’t Christians that we aren’t full members of society,” Lidsky said. “It’s a predominantly Christian culture, but when the government sponsors religion, it says anyone who is not Christian is a permanent outsider in that culture, and I do think that violates the text of the First Amendment as written. Whatever neutrality means, I think it means that.”

The issue of judicial activism has recently fomented a polarizing controversy among both laymen and legal scholars. With that in mind, the Federalist Society kicked off its fall lineup of events by hosting attorney Clark Neily to speak about the subject.

Neily, however, does not see judicial activism as being widespread issue.

“I agree that it happens once in a while,” he said, “but not nearly to the extent that a lot of people would have you believe.” Instead, Neily sees the problem of being what he called “judicial abdication.” He explained the term as meaning “refusing to enforce reasonably clear textual limits on government power.”

That Neily views this as being an important issue should come as little surprise to those who know his recent legal background. Neily is a senior attorney with the Institute for Justice, which bills itself as the “nation’s only libertarian public interest law firm.”

To illustrate the idea of judicial abdication, Neily discussed the 2005 Supreme Court case of Kelo v. City of New London. The case involved the use of eminent domain, a power that governments possess that enables them to seize private property against the will of the owner. The Fifth Amendment prevents this taking unless compensation is afforded, and even then, it was long held that the property taken must then be used for the public good.

What made this case so controversial was that the land to be seized was then going to be redeveloped into nicer homes, a seemingly private interest. Nevertheless, the court found that such a taking was authorized. Neily did not mince words in describing his disagreement with that decision: “I think it’s fair to say that they basically rewrote the public use provision,” he said.

Neily saved even stronger words for the decision in Raich v. Ashcroft. This case, also decided in 2005, dealt with the federal government’s ability to enforce its drug laws in the wake of California’s medical marijuana law. The government claimed the power to enforce drug laws under the commerce clause, but the question that this case presented was whether this power was still applicable when someone grew their own marijuana and used it within the state. The court held that this intrastate activity still fell under the commerce clause. “I think that is clinically insane,” Neily said.

The common link of these and other cases that Neily brought up was that they were decided in a way that limited personal liberties. “A theme that I see in modern constitutional law is the way that courts treat ambiguous provisions of the constitution as a one-way ratchet in favor of government power,” he said.

Although Neily said he views ambiguity in the Constitution as a necessity, he said it makes it even more important that judges are consistent when analyzing ambiguity. Neily, however, explained his belief that most judges change their analysis based on whether it would strengthen government power or individual liberties, and that the odds often seem slanted in the government’s favor.

Federalist Society ranked among top chapters
According to the National Federalist Society, the UF College of Law Chapter is ranked among the top four chapters in the U.S. Please congratulate Professor Steven Willis and Josh Mize, president of the UF chapter, on this well-deserved honor.

ICAM team receives honorable mention in Vienna
At this year’s Willem C. Vis International Commercial Arbitration Moot held in Vienna, Austria, the team from University of Florida received two important recognitions. The team won an honorable mention for its Claimant’s brief, drafted by all members with editing credit to Andres Healy, and Julianne Parker earned an honorable mention for her oral arguments. Law students from around the world compete in the Vis Moot each year, with over 250 schools and over 1,400 students in attendance. The UF team consisted of Joe Wheeler, Anastasia Campbell, Sasha Funk, Andres Healy, Olga Butkevich, Chana Cannon, and Julianne Parker. This is a new high in terms of recognition for the UF team. The team is coached by Professors Dawson and Harrison as well as Miami attorney Eduardo Palmer. Throughout the semester it was benched by Professors Hurst, Davis, Powell, Sokol and Professor Larry DiMatteo from the College of Business. UF’s oral rounds included arguments with the teams from Sultan Qaboos University in Oman, Universidad Panamericana in Mexico, University of Mainz in Germany, and Universite Pantheon-Assas in France.

Congratulations to the UF Jessup International Law Moot Court Team
In February, the Jessup team competed in the 51st annual Philip C. Jessup International Law Moot Court Competition, the world’s largest moot court competition with participants from more than 500 law schools in more than 80 countries. The Jessup team placed sixth out of 24 teams competing in the U.S. Southeast Super Regional round, reaching the quarterfinals for the first time in school history. The participants were 2Ls Matthew Kozyra, Jason Taylor, Steven Blickensderfer, Lindsey Franco, and Jennifer Shepard. The team also took home the title of fifth best brief out of the 24 teams that competed. Individually, Steven Blickensderfer was named 15th best oralist out of all individual oralists at the Southeast Super Regional round. UF Jessup annually competes in the Philip C. Jessup International Law Moot Court Competition, which focuses on public international law and humanitarian law. For more information about the UF Jessup team, please visit the Jessup Web site at or e-mail Jason Taylor at ufjessupmootcourt@gmail.com.

Environmental and Land Use students, faculty and friends paddle Matanzas River
Faculty and students associated with the Environmental and Land Use Law Program recently took advantage of a Spring Break rain check and fabulous weather to paddle the Matanzas River Estuary on Florida’s Northeast Coast. The kayak trip was originally scheduled as the final field trip for the Program’s Marine and Coastal Law and Policy Field Course but inclement weather dashed any possibilities. The Matanzas River Estuary is currently being considered for designation as an Outstanding Florida Water under Florida law, which imposes a non-degradation standard on designated waters. The Florida Department of Environmental Regulation will hold a hearing on the proposed designation on April 13 in Palm Coast. Following the 3.5 hour long paddle, the paddlers enjoyed the sunset from the back deck of the home of UF Law alumnus and former EPA Region 4 Administrator John Hankinson, whose home overlooks an arm of the estuary and the Atlantic Ocean. Additionally, Conservation Clinic Director Tom Ankersen and CGR Associate in Law Richard Hamann, together with 2009 JD and ELULP program graduates Rachel King and John November and 2010 ELULP LLM candidate Megan Wegerif, recently published a law review article on the regulatory and practical effect of OFW designation in the Sea Grant Law and Policy Journal, based on recent work of the Conservation Clinic.

Sam Warfield selected for Law Student Award
Second-year law student Sam Warfield has been selected as the recipient of the Law Student Award by the Executive Council for the Florida Bar City, County and Local Government Section. He will be presented with a cash award and plaque at the section’s annual awards luncheon for his outstanding academic performance in Professor Wolf’s course on local government law.

Participate in the 2010 law school student survey
UF Law has agreed to participate in the 2010 Vault Law School Student Survey. The information from this survey may be included in the 7th edition of the Vault Law School Buzz Book and will appear on the Vault.com Web site. Your participation will help countless prospective students make key choices during the law school application process. In completing this survey, we encourage you to be candid as your identity will remain anonymous. During the course of the survey, you will be asked for certain information that you may feel makes you identifiable to your school. However, any responses we quote will not be paired with any information that will allow your school to identify the quoted student. Please complete the survey by Friday, May 14, 2010.
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Neily said that while Heller answered some important questions, it raised further questions. Not only did the Heller opinion not specify a standard of review, but it left open the question of whether the right to bear arms had been incorporated. The case of McDonald v. Chicago seeks to enter that question. For those not familiar with the incorporation doctrine, Neily summarized the questions as “whether the right to use and bear arms applies against the state and local governments.”

The question is of high importance for a reason that Neily pointed out, saying, “most of the gun laws are on the state level.” Such is the case in McDonald, where the city of Chicago has issued a handgun ban, and has also restricted use of other firearms to a degree that the plaintiffs think is unconstitutional. If the Second Amendment has not been incorporated, state and local governments are under no obligation to abide by it, as the Bill of Rights originally applied to only the federal government.

While Neily, who was co-counsel in Heller, did not serve as counsel to the plaintiffs in McDonald, the Institute for Justice did file an amicus brief, and Neily has some strong views on the subject. Neily also noted that his interest in these cases was not borne from beliefs about gun rights in particular, saying “originally, Heller wasn’t supposed to be about guns, it was supposed to be about liberty.”

Neily said that he has encountered very little disagreement with the idea that the Second Amendment is incorporated against the states, but added that that is only a portion of the McDonald case. For the rest of it, Neily had to give a bit of a history lesson, starting in mid-19th century New Orleans. This was the birthplace of what we now know as the Slaughter-House Cases. In what Neily described as a “rampantly dishonest opinion” the court interpreted the 14th Amendment as having very little impact, and more or less completely writing out the Privileges and Immunities Clause. The effect of this has been that the Supreme Court must now use the substantive due process framework to analyze the protection of individual rights. Neily argued that these analyses were meant to be done through the Privileges and Immunities Clause, saying that, at the time, “‘privileges and immunities’ was pretty well synonymous with ‘rights.’”

The oral arguments for McDonald were heard in early March, and while Neily seemed optimistic that the court would hold that the Second Amendment has been incorporated, Neily said he could not be as optimistic that the court would overturn the Slaughter-House Cases. The court’s questioning on the subject had been quite harsh, including what Neily described as “snide and snarky” comments from Justice Antonin Scalia about why long-decided law should be changed.

After Neily finished his presentation, UF Law professor Joseph Little raised issue of the 14th Amendment, pointing out that his interest in it was not nearly that of Neily, but did commend him for helping to enforce individual rights, something that Little said is not done nearly enough.

UF Federalist Society sends delegation to national student symposium
A delegation from the UF Federalist Society represented UF at the 2010 Federalist Society National Student Symposium, an annual gathering of conservative and libertarian students, lawyers, and law professors from around the nation. The symposium was held Feb. 26 & 27, at the University of Pennsylvania Law School in Philadelphia. The theme was “Originalism 2.0.” Members of the UF delegation included, Federalist Society President Joshua Mize, Nakku Chung, Eugenia Fischer, Jason Yoepp, Christine Pratt, Michael Kelley, and Jordan Pratt. At the symposium, law professors and judges conducted panel discussions and debates on topics such as “Originalism: A Rationalization for Conservatism or a Principled Theory of Interpretation?,” “Originalism and Construction: Does Originalism Always Provide the Answer?,” and “Originalism, Precedent and Judicial Restraint.” Panelists included, Yale Law Professor Jack Balkin of the legal blog “Balkanization,” Professor Richard Fallon of Harvard Law School, former U.S. Solicitor General Greg Garre, Judge A. Raymond Randolph of the U.S. Court of Appeals for the D.C. Circuit, Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, and Professor Jeffrey Rosen of George Washington University School of Law. The keynote speaker was Dr. Bill Kristol, editor of The Weekly Standard.

Congratulations to the UF Willem C. Vis International Commercial Arbitration Moot Team
Over the weekend, the Vis team travelled to the University of Miami campus to compete in the Florida scrimmage competition hosted by The Florida Bar. The participants were Olga Butkevich, Chana Cannon, Sasha Funk, Anastasia Campbell, Julianne Parker and Andres Healy. Campbell received the highest score awarded in UF’s match-up against the University of Versaille, Healy received the highest score awarded in UF’s match-up against Florida Coastal, and Parker received the highest score awarded in UF’s match-up against Stetson University. Additionally, Healy was one of three students recognized for “Top Oralist” honors. Thanks to the generous donation from adjunct coach Eduardo Palmer (JD 85) the team will travel to the competition in Vienna from March 26 through April 1. For more information please visit http://www.cisg.law.pace.edu/vis.html. Tryouts for UF’s team are held each fall.

Congratulations to the 2010-2011 JMBA Executive Board
President: Joe Joyce; Vice President Student Services: Laurie Tyler Yonge; Vice President Social: Ashley Johnson; Secretary: Katie Kellam; Treasurer: Justin Pacific. General Board: Jenny Albano, Sarah Casey, Jessica Couvertier, Amber Curtis, Martin Holland, Brian Johnson, Joe Kovecses, Dan Lazaro, Jay Levin, Vincent Massaro, Matt Michel, Sarah Moore, Katie Moum, Josh Nemser, Moish Peltz, Sal Picataggio, Megan Policastro, Lindsay Powell, Christina Russo, Bethany Turner, Genevieve Turner, and Chase Wiley.

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.

Professor James Jacobs

When Professor James Jacobs first started hearing about drug legalization, he was intrigued. But those advocating for it could not give him answers he was looking for.

James spoke for the Federalist Society on March 3 about the effects legalization would have.

“I started working on this when I heard people that I respected as very thoughtful and bright in general proclaiming proudly that they were for drug legalization and that got my antennae up,” said Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the courts director of the Center for Research in Crime and Justice at the New York University School of Law. “I said, ‘Well what does that mean?’ Mostly the answer was, ‘I don’t know exactly what that means. It just means legalize and we’ll worry about the details later.’”

James was open to the idea of some legalization, but he wanted more information.

“I’m kind of a detail person, so I don’t want to sign on to the legalization plan without having some idea,” he said. “Before we embark on this as an experiment that no other country does or, to my knowledge, has ever done, I would like to have a better idea of what this is going to look like, how it’s going to work, and all the details to try to assess what would be the cost and benefits, what might go along with it.

He said drugs are an interesting topic for the Federalist Society because traditional conservatives are divided with libertarians on the issue.

James predicted that demand for psychotropic drugs would increase greatly and many problems would come from it. He argued that we would have more drug emergencies and addictions to deal with. He compared it to how alcohol and other drugs are regulated today, noting that there’s no reason to believe Americans would all be responsible users.

“Other kinds of drugs like valium and Prozac and Zoloft and so forth are widely used and we have lots of overuse and lots of abuse of those even prescription drugs,” James said. “So I don’t read the record as saying that Americans are strong and disciplined and knowledgeable, reluctant, careful users of psychotropic medication. I think that’s not at all the case.”

High school and college students would come to class high more and homework productivity would decrease, James said.

Another problem would come in trying to figure out what to do with the FDA. If illicit drugs were legalized, would we keep the FDA out of it completely?

“That would lead us to kind of a strange situation where if a person wanted a cold medication – codeine – they would have to get a prescription, but if they just wanted the cocaine, they could just go down to the 24-hour-a-day drugstore and purchase it, no questions asked,” James said. “I don’t know how long a system like that could be maintained before we just dropped the whole FDA process altogether. As bizarre as you might think that sounds, there are libertarians who would do that right now because that’s unnecessary government regulation.”

Further, James said drunk driving is a big enough problem that it merits considering how bad driving while on drugs would be.

“Importantly, will we see an increase in drug driving? Is that a big issue or a little issue?” James said. “Right now we assume that drunk drivers take about 15,000 lives in the United States a year. You’ve got to swallow hard to absorb that – 15,000 lives. What about an increase in drug driving?”

Overall, James seemed willing to consider legalization but would want more studies done about what would eventually happen. He admitted that legalizing marijuana is a different issue than the rest of drugs because its use is already significantly higher than the other drugs.

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.

Free-market environmentalists argue that the answer is through creating markets and making better property rights.

“We get the problem of a lack of demand for environmental goods and services, we have poorly specified or absent property rights in common resources that allow misuse of it, we have the failure of the legal system to apply standard doctrines of property, tort and contract to solve these problems and we have an absence of market,” said Andrew Morriss, a professor at the University of Illinois College of Law. “If we correct those problems, we will in fact correct many environmental problems.”

Morriss is also a fellow with the Property and Environment Research Center (PERC), an institute dedicated to improving environmental quality through markets and property rights. The Federalist Society sponsored his presentation on Wednesday.

A main cause of environmental problems comes from people and businesses freely dumping waste into the air and the water and thus polluting a common resource, Morriss said. Fixing this problem through incentives would help improve the environment, Morriss argued.

“If you’re going to take a market approach, you have to somehow solve the problem of people using this common resource for free and somehow get their incentives lined up with the costs they impose,” he said.

Morriss told the story of the red-cockaded woodpecker as an example of how free markets can help the environment. The red-cockaded woodpecker has been endangered since the 1970s as its habitat changed around it. International Paper agreed to use some of its land for conserving this woodpecker, eventually selling woodpecker credits and importing them.

The conservation plan was wildly successful, and it led to International Paper being able to profit off of the land in other ways, including by selling hunting rights. According to Morriss, International Paper started making more money from the conservation land than they would have had it been used for paper.

Alyson Flournoy, UF director of UF Law’s Environmental & Land Use Law Program, said there are four things to keep in mind when discussing free market environmentalism.

First, property rights and markets are not magic, she said. They’re not a substitute for thought and judgment. Also, someone has to decide the structure of creating a new market, which leads us back to government, she said.

“As with any tool, if you don’t use a tool correctly, it can bite you,” Flournoy said. “You need to know where it’s appropriate to use, what its limitations and its strengths are.”

Second, markets can be seriously flawed, Flournoy said.

“It’s easy to think these models are a perfect explanation of the world and therefore if we adopt markets, the world will follow the models,” she said. “There are some cases where it does, and some of the empirical examples that Professor Morriss gave you are those. But beware generalizing and assuming that in every case the theory will work perfectly.”

Third, Flournoy argued that the choice isn’t simply government regulation or free markets. This is because markets and current regulatory schemes can have different goals.

“[Markets] are geared to achieve one goal and one goal only: efficiency. That is what we can achieve and that’s a really valuable goal, but existing environmental policies are designed to achieve a lot more than efficiency,” she said. “They may be achieving protection of public health notwithstanding if you are rich or poor. It may not be an efficient result but we may care about that.”

Finally, Flournoy said markets do not just spring up out of nowhere by magic. The government would have to make choices about which regulations to replace with markets and allocate rights which would be a difficult process, she said.

Morriss said he knows markets would not arise overnight but the process would be worth it for the environment.

“We think markets are an answer,” Morriss said. “We think markets are a process, they’re not an answer in the sense that they’ll tell you who gets what. It’s a process by which we think solutions will emerge. They’re not magic, but the term we use is spontaneous order…They do arise without any central planning; they do arise without central direction.”