Georgetown Law Professor Randy Barnett discusses the Affordable Care Act at the 32nd annual Dunwody Distinguished Lecture in Law on March 22. (Photo by Haley Stracher)

By Matt Walker

Although the Supreme Court did not reach the overall decision on the Affordable Care Act that he would have liked, Georgetown Law Professor Randy Barnett said victory was achieved “by the constitutional theories we prevented from being adopted by the Supreme Court.”

Barnett, who represented the National Federation of Independent Business in its case against the Affordable Care Act spoke on “Who Won the Obamacare Case (and Why Did So Many Law Professors Miss the Boat)?” at the 32nd annual Dunwody Lecture in Law on March 22.

The Carmack Waterhouse Professor of Legal Theory at Georgetown University Law Center said he became involved in the case because of two issues.

“One was saving the country from Obamacare, which I think is disastrous public policy, and we’re all going to have to find out how disastrous it is shortly,” Barnett said. “And the second thing was saving the Constitution for the country.”

He said that although they lost in the first point, he was relieved that they won the second point – five of the justices affirmed his views of the Commerce, and Necessary and Proper clauses.

The clauses, which give Congress the power to regulate commerce and “to make all laws which shall be necessary” to carry out its powers, were upheld when the Affordable Care Act’s individual mandate was struck down by the court, according to Barnett.

He said rather than a mandate requiring individuals to purchase health insurance, individuals will have the option to purchase insurance or pay a tax penalty. Analysts say that people who decline to purchase health insurance will see no difference whether it is called a “mandate” or a “tax.”

Barnett said the ruling makes bad law in two ways, but made constitutional law better in more important ways.

“First (Chief Justice John Roberts) claimed the power to rewrite a law by giving it a saving construction to uphold it even though that construction is not the most natural reading of the statute,” he said. Additionally, “the chief justice allowed that Congress may impose an unprecedented tax on inactivity.”

Barnett said as a result of the ruling, “Congress has the unprecedented and potentially dangerous power to tax inactivity without apportioning the incidence of such tax equally among the states.”

Despite those losses, Barnett emphasized several points on which he said his side was victorious: Denying the government the power to force citizens into economic activity, preventing the Supreme Court from adopting a stance that would give Congress more power to regulate the national economy, and upholding that conditions on federal spending are unconstitutional.

“While our failure to prevent the egregious Affordable Care Act from taking effect remains a bitter disappointment and one I have not gotten over yet, this should not be allowed to detract from all we have accomplished,” Barnett said. “Only time will tell who really won the Obamacare case, but for now the constitutional scheme of limited and enumerated powers lives to fight another day.”

The Florida Law Review Dunwody Distinguished Lecture in Law series was established by the U.S. Sugar Corporation and the law firms of Dunwody, White, & Landon, P.A. and Mershon, Sawyer, Johnston, Dunwody & Cole in honor of Elliot and Atwood Dunwody. The honorees were brothers who dedicated their lives to the legal profession and who set a standard of excellence for The Florida Bar. As graduates of the University of Florida College of Law, they labored long, continuously and quietly to better the social and economic conditions in Florida.

The series is intended to perpetuate the example set by the Dunwody brothers by providing a forum for renowned legal scholars to present novel and challenging ideas.

An archived video of the Dunwody Lecture is available at www.floridalawreview.com.

Amy T. Petrick (JD 00), senior assistant county attorney for Palm Beach County, and Michael O’Shea, professor of law at Oklahoma City University School of Law, discuss firearms regulation at the 12th Annual Richard E. Nelson Symposium on Feb. 8. (Photo by Haley Stracher)

By Richard Goldstein

Its 19^th century provenance is “sordid;” it is employed today in the service “political bullying;” and the best that a lawyer can hope for is to embrace “ambiguity,” while navigating this legal realm.

Such was the abuse heaped on the seemingly mild-mannered legal doctrine of preemption during UF Law’s Feb. 8 Nelson Symposium at the UF Hilton Conference Center.

“Preemption Puzzles: Firearms, Fracking, Foreigners, Fuels and Farming” explored some of the hottest legal and political issues as they sift through.

Preemption is the doctrine for establishing which level of law takes precedence – local, state or federal – when they come into conflict.

UF Law Professor Michael Allan Wolf, host of the Nelson Symposium and the Richard E. Nelson Chair in Local Government Law, noted that the history of preemption tends to involve early 20^th century railroads when sorting out when the federal government’s authority overrides that of states. A railroad gets out of safety standards for cabooses because the caboose was a mail car and the Supreme Court ruled in 1919 that the federal rules overrode the state’s (Pennsylvania Rail Road Co. v. Public Service Commission). In a 1917 case, a man had to pay back his railroad worker’s compensation award because the federal government didn’t cover cases in which negligence played no part even though the state allowed for such compensation (New York Central Rail Road Company v. Winfield).

But the granddaddy of all preemption cases, and the reason Wolf calls the history a sordid one, was the 1842 Prigg v. Pennsylvania in which the Supreme Court ruled that the state could not prosecute a man who captured and returned a black woman to the heirs of her original slave owner. She had been living as a free woman in Pennsylvania and was returned to slavery in Maryland after her owner died. The state convicted the man who transported her against her will to Maryland. But the court ruled that Congress had preempted the authority of the state to prosecute people under its fugitive slave law. The Congress had legislated slaves as property under federal law and in accordance with the U.S. Constitution.

Much of the conference focused on the collision between local law and state laws. Amy T. Petrick (JD 00), senior assistant county attorney for Palm Beach County, explained the difficulties that local officials in Palm Beach County have encountered as the Legislature has attempted to enforce preemption of local firearm regulations by threatening local officials with fines and removal from office. Petrick is lead counsel in a case pending in Leon County, Marcus v. Scott, which challenges the Legislature’s ability to punish local officials for passing laws regulating firearms. Commissioners can be fined $5,000 and removed from office by the governor

Petrick called the law “political bullying with no proper purpose.”

The 2011 state law came in part as a response to the county’s attempt to ban high-capacity magazines. Petrick said the commission put that idea on the shelf after Gov. Rick Scott signed the legislation into law in 2011. But in response, Palm Beach County sued the Florida governor, the Florida Legislature as well as Attorney General Pam Bondi, saying that the effect of the law was to “chill” commissioners’ lawmaking. Petrick said the threatened penalties has led her to advise commissioners to steer clear of even some zoning questions because of uncertainty about what precisely remains under local authority.

More conflicts between local and state government were brought out by Professor John R. Nolon, of Pace University School of Law in White Plains, N.Y. He described attempts by state governments in Pennsylvania and Ohio to preempt local government zoning when it pertained to fracking, the method of extracting gas using high pressure streams of water. Courts in both states have sided with local governments’ rights to dictate the location of industrial operations within their jurisdictions.

Nolon argued that state and local governments should cooperate in the decision-making on the use of the technology so that fracking can proceed and its benefits to society in the form of energy generation are realized even as local interests are taken into account.

Uncertainty, or “ambiguity,” as Wolf put it, was a theme of the conference. Wolf advised law students and lawyers to get used to it.

Surveying recent cases, Wolf noted that preemption cases can fall on either side of the political divide or even divide the same side. For example, the Republican-dominated Chamber of Commerce called for federal law to preempt Arizona immigration law, while the state’s elected Republican administration fought against preemption.

“Maybe we can actually have a level playing field because ideology … doesn’t point us in the direction of preemption or non-preemption.” The solution, said Wolf, is to embrace ambiguity.

Speakers at the symposium included Professor Michael O’Shea, Oklahoma City University School of Law; Associate Professor Rick Su, SUNY Buffalo Law School; Assistant Professor Hannah Wiseman, Florida State University College of Law; environmental and land use law attorney Robert N. Hartsell, Fort Lauderdale; Dave Mica, executive director, Florida Petroleum Council; as well as Samantha Culp (3L) and Eric Fisher (3L).

The symposium is named in honor of Richard E. Nelson, who served with distinction as Sarasota County attorney for 30 years, and his wife, Jane Nelson, two UF alumni who gave more than $1 million to establish the Richard E. Nelson Chair in Local Government Law, which is responsible for 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.

Two positions are now available at the Florida Supreme Court for the Spring 2012 semester. They are each a five-credit externship, running Jan. 14 – April 26, 2013, and require 20 hours per week. You must have a clearance letter from The Florida Bar to participate. For more information or to apply, contact Tim McLendon in CGR in 230 Bruton-Geer, by email at mclendon@law.ufl.edu, or by phone at 273-0835.

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.

Spring Semester Foreign Enrichment Course and Spring Break Field Course will feature International Development Law and Policy

The UF Levin College of Law Environmental and Land Use Law Program will offer the following conservation and development practice related courses for Spring 2013 Semester:

• Contemporary International Development: Law, Policy and Practice (1 credit) (Spring semester on campus)
• Sustainable Development Field Course: Law Policy and Practice (2 credits) (Spring Break in Belize)

Students are eligible to enroll in either or both. Course descriptions and further information provided below.

Contemporary International Development: Law, Policy and Practice (1 credit) addresses the international and comparative law framework within which international development is carried out. The course will explore models of international development and development assistance as these have evolved since the Post-WWII Breton Woods accords that created the World Bank Group and regional progeny.  Topics that will be addressed include, but are not limited to free and fair trade, environmental security, human rights and global health.  The course will be coordinated by UF Law faculty and taught by law and policy practitioners from Costa Rica, Argentina and Jamaica.  Course instructors include Otton Solis, a Costa Rican development economist, former minister of the economy and presidential candidate; Oscar Avalles, an Argentinean attorney and World Bank country director for Guatemala; and Danielle Andrade, a Jamaican environmental and human rights attorney with the Jamaica Environment Trust.  The one-credit course will meet for one hour on Tuesday and Wednesday at 9 a.m. and conclude on Feb. 27 before spring break.

SPRING BREAK FIELD COURSE IN BELIZE

Sustainable Development Field Course: Law Policy and Practice (2 credits) will provide students with an on-site, interdisciplinary understanding of the law and policy challenges associated with “sustainable development” in a developing country.  Students will travel to and within Belize over Spring Break and delve into international and domestic law issues concerning protected areas, indigenous land rights, intellectual property in biological diversity, water, mining and energy development, fisheries and coral reef conservation – all within the context of national pressures for human development.  In addition to domestic Belizean law and international development policy, students will be exposed to the unique legal framework of the commonwealth Caribbean. The course will include skills exercises based around ongoing projects of the UF Law Conservation Clinic.   The course includes a Program fee that will cover in-country expenses and students must make their own international travel arrangements.  Enrollment is capped at 12 students.  Preference in given to students enrolled in the college of law’s Environmental and Land Use Law Program, but others may apply on a space-available basis.

Students interested in either course can contact Professors Tom Ankersen (ankersen@law.ufl.edu) Mary Jane Angelo (angelo@law.ufl.edu) or Research Assistant and Joint J.D./M.D.P candidate Gentry Mander (Gentry.Mander@gmail.com )

Justice Clarence Thomas delivered the Marshall M. Criser Distinguished Lecture at UF Law Sept. 21 to nearly 600 guests.

By Matt Walker
Senior writer

United States Supreme Court Justice Clarence Thomas made national news at UF Law last month when he dismissed U.S. News & World Report rankings and stated that a law degree from an Ivy League school shouldn’t carry more weight than any other law degree. While those remarks garnered the most attention in the press, they were just a small portion of Thomas’ overall message, which emphasized the importance of positivity and hard work.

This was Thomas’ second visit to UF Law to give the Marshall M. Criser Distinguished Lecture in Law – having previously participated in the second annual Criser Lecture in 2010. Like his prior visit, this lecture was structured as a “conversation” with UF Law students. Lauren Humphries (1L), David R. Maass (3L), Eric Netcher (3L) and Zack Smith (3L) shared the stage with Thomas in the Marcia Whitney Schott Courtyard at UF Law on Friday, Sept. 21, passing a microphone amongst the group as they asked questions of the Supreme Court justice.

Smith, who is editor-in-chief of the Florida Law Review said he was interested in speaking with Thomas because “it seemed like a once-in-a-lifetime opportunity to sit down with a sitting United States Supreme Court justice and ask him questions on any topic about which I was curious.”

Smith said he and the other students met Thomas briefly before the lecture and, along with about 20 other law students, had lunch with him afterward.

“Justice Thomas was very personable in these settings and was genuinely interested in talking to students and answering our questions,” he said. “I was impressed with his ability to recall everyone’s names and with the fact that he made a point to speak to everyone in the room.”

During the lecture, while Thomas touched on some legal topics, the justice’s stories generally proved to be a formidable mixture of lighthearted humor and solid advice for law students, including insights into how his experiences growing up in the segregated South helped shape his worldview as an adult and a look back at the difficulties Thomas had in law school.

“I found law school to be as clear as cement,” Thomas said in his opening remarks. “It was a very, very difficult experience.”

He said that the law does eventually reach a point of clarity, but for him it wasn’t until years after he had earned his J.D.

“It’s one of the reasons I’ve asked during my visits to spend more time with students,” Thomas said, “to reassure students in many ways that (the law) isn’t always unclear; that it may be difficult and complex but at some point the clouds open and you begin to see things a little better. Maybe it’s experience, maybe it’s maturity. Maybe it’s just life.”

Thomas – who graduated from Yale Law School – discussed how the most important mentors he’s had in his life weren’t the ones with the most formal education, but rather it was his family growing up, and the people he surrounds himself with every day.

“I don’t know if you saw the movie ‘The Help,’ but that’s basically where I grew up,” he said. “That’s my family, that’s my neighborhood, those are the people who were the wisest people, they were good people … those people are wise because they’ve managed to get through life in a good way.”

Those were the people who instilled in him a sense of hope and positivity, Thomas said, and it wasn’t until he was surrounded by the more privileged and elite in New England that he was exposed to a sense of cynicism and negativity.

But that cynicism latched onto him and he carried it with him for a long time. When asked about advice for graduating law students, Thomas again said to stay positive.

“I can’t tell you to use my experience because I was decidedly negative when I got out of law school and quite bitter and even quite cynical – that’s why I try to counsel young people not to go there, it took a long time to overcome that,” Thomas said.

Smith said one of the most salient points he took away from the conversation with Thomas was that, “America is still a land of opportunity.”

A memorable moment in the lecture came in response to a question about law school rankings and how attitudes toward the law school hierarchy can impact the legal profession.

Thomas said he has never paid attention to law school rankings and doesn’t think which law school someone graduated from should figure into hiring for a clerkship or job.

“There are smart kids everywhere,” he said, “they’re male, they’re female, they’re black, they’re white, they’re from the West, they’re from the South, they’re from public schools, they’re from public universities, they’re from poor families, they’re from sharecroppers, they’re from all over.”

He said that while he doesn’t rule out having Ivy Leaguers clerk for him, he intentionally seeks out those who aren’t from the nation’s most elite schools.

Automatically excluding someone from consideration for a position based on the school they went to is the antithesis of what the United States is about, Thomas said.

Thomas did breach more legal-oriented topics as well, emphasizing the importance of a practical approach to the law. Thomas also touched on his appreciation for his position as the circuit justice for the U.S. Court of Appeals for the 11th Circuit, which includes Georgia, Florida and Alabama. He said although he lives in Washington, D.C., he considers the South his home and every time he thinks about being a part of the 11th Circuit he has to pinch himself.

“To know that within my lifetime – I went to segregated schools – to know that I’m part of the circuit that interprets the laws, that’s a big deal to me,” he said.

Thomas recommended that students take practical courses. He suggested that scholarly work would be cited by the high court more often if they were to focus on the practical application of the law:

“Justice Thomas emphasized that students should take practical courses and that professors should write articles on practical topics,” Smith said, “which can assist the practicing bar in arguing cases, and judges in deciding those cases.”

And he said that Supreme Court opinions should be accessible to the average person.

“Without condescension, we are obligated to make what we say about the Constitution and (the people’s) laws accessible to them,” Thomas said.

The Marshall M. Criser Distinguished Lecture Series was created in early 2007 by Lewis Schott (B.A. 1943, LL.B. 1946) of Palm Beach, Fla., as a tribute to his fellow UF Law alumnus, former UF President Marshall Criser (JD 51). The goal of the speaker series is to host prestigious national and international speakers every year on topics of particular interest to law students. Past speakers have included Supreme Court Justice John Paul Stevens (ret.), Justice Clarence Thomas and former ABA President Stephen Zack (JD 71).

Stories about the lecture have run in hundreds of media outlets nationwide. A webcast of the Criser Lecture is available here.

Justice Clarence Thomas delivers Criser Lecture

As blistering winter weather threatened to snow-in the nation’s capital on Feb. 4, it was sunny but cool in Florida. Despite the sunshine, 700 law students, faculty and others seated the University of Florida Levin College of Law Marcia Whitney Schott courtyard or standing on the second-floor balcony shivered from time to time as they waited for United States Supreme Court Justice Clarence Thomas to make his appearance as the college’s special guest during the second annual Marshall M. Criser Distinguished Lecture.

After an introduction from UF Law Dean Robert Jerry, Thomas took the stage, saying, “I don’t know how you can tolerate this consistently good weather.” The resulting laughter from the crowd was a sound that was heard often, as Thomas delighted his audience with his sense of humor.

Thomas, the fifth Supreme Court justice to visit the Levin College of Law in the past five years, came to UF Law with the express intention of interacting with law students, which he thoroughly accomplished during several lunches, dinners, classroom visits and other meetings prior to and after the lecture.

“My wife told me some years ago that it’s better to do conversations instead of lectures,” Thomas said, “because you get to talk about things people are really interested in, as opposed to what you’re interested in.”

During the lecture, billed as a “conversation,” four UF Law students — Joshua Mize (3L), Leah Edelman (2L), Jon Philipson (2L), and Dwayne Robinson (2L) — asked Thomas a series of pre-selected questions on topics ranging from personal to professional.

After being asked his perspectives of how attitudes toward race have changed, Thomas spoke poignantly about his youth and the frustrations he faced as a young black man in the segregated, Jim Crow South. He recounted his excitement as a high school senior upon receiving notice of outstanding SAT scores qualifying him to attend the University of Georgia or the University of North Carolina — only to be devastated and angered by the realization that he couldn’t attend those institutions due to the color of his skin. “I’m not going to gild a lily and tell that you everything was peaches and cream,” he said, “because it was not. I was really, really upset for a long time.”

But eventually, Thomas said he realized that he was on a self-destructive path, and that he could seek positive reform through the law.

“In the law, I saw a possibility for fairness,” he said, “a possibility for change, a possibility to do something to help others.”

Having been so cynical earlier in life, Thomas showed that he has little tolerance for it now, especially when that cynicism is directed toward the court.

Noting the attacks on Supreme Court decisions, Thomas said, “I think we do run the risk, in our society, of undermining institutions that we will need to preserve our liberties.”

Thomas noted that the criticism comes almost exclusively from those who have not been in his shoes.

“I keep hearing people make up reasons why we do our business,” he said, “and, it’s fascinating, it’s not from judges, it’s not from former members of the court, it’s from people who don’t do the job. It’s not easy for anyone — except the people who have no responsibility to do it, for the people who have never had to vote whether somebody dies.”

While Thomas’ reputation as a friendly and down-to-earth individual was known to the students who shared the stage with him, he exceeded their expectations.

“Speaking to friends at schools Justice Thomas previously visited, I was told that Justice Thomas was personable and very engaging,” Philipson said. “However, the words did not do justice to the experience. It felt as if the five of us were sitting around at someone’s house — simply sharing ideas and jokes.”

Philipson, the editor in chief of Florida Law Review, said that the event was as educational as it was entertaining.

“By inviting judges and justices to the campus, the law school provides us the opportunity to understand judicial opinions and the people who write them and to understand how they arrive at their opinions,” he said. “Similar to previous visits by justices and judges, when I read Justice Thomas’ opinions in the future, I now have a better understanding of how he approaches the law.”

Edelman, a member of the Florida Moot Court Team, was equally impressed. “I think his accessibility surprised me in the best way,” she said. “You don’t expect a Supreme Court justice to answer that many questions or shake hands and take pictures with everyone in the room.”

Mize, the president of the Federalist Society at UF Law and an editor of the Florida Law Review, described him similarly.

“Justice Thomas was engaging and thoughtful throughout the conversation,” Mize said. “It was an once-in-a-lifetime experience.”

Robinson, a junior research editor of Florida Law Review, said that Thomas’ visit provided insight into not only Thomas himself, but others in the public light. “Justice Thomas’ visit was more than I could have ever expected,” he said. “Personally, it had a profound effect on how I view people in public life.”

Robinson added that he has not heard a single negative comment from a student about Justice Thomas’ visit. “He had a great impression on the school,” he said, “and hopefully we made a great impression on him.

These comments reflected the feelings of the audience, who enjoyed the Thomas’ humility, insight, and especially his sense of humor. “Justice Thomas has one of the best laughs I have ever heard,” Edelman said, “and I’m glad that we got to hear it so often.”

The lecture was one of just many events that Thomas attended during his visit to the law school. Wide eyes and whispers of “Oh my gosh” greeted Thomas as he surprised first-year students on Wednesday by unexpectedly showing up in their classes. While a visit to only one of the three first-year sections was planned at first, Thomas insisted on visiting all three.

After the lecture on Thursday, he met with a group of student leaders, answering questions ranging from his legal writing pet peeves to the wisdom of looking to other countries laws for guidance.

Thomas also joined students and the local legal community (see sidebar story on the Federal Bar Association dinner) for meals and meetings, where mingled and conversed in smaller groups.

The Marshall M. Criser Distinguished Lecture Series was created in early 2007 by Lewis Schott (B.A. 1943, LL.B. 1946) of Palm Beach, Fla., as a tribute to his fellow UF Law alumnus, former UF President Marshall Criser (JD 51). The goal of the speaker series is to host prestigious national and international speakers every year on topics of particular interest to law students.

For more information on Justice Thomas’ visit, including a photo gallery and video of his Feb. 4 lecture to University of Florida Levin College of Law students, visit www.law.ufl.edu/news/events/2010/JusticeThomas/.