Volume 25, Number 4


UNIVERSALISM, LIBERAL THEORY, AND THE PROBLEM OF GAY MARRIAGE

Robin West

Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the “universalist” assumption: all human beings, not just some, are rational—not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the “individualist” assumption: because each one of us is rational, each one of us is not only competent to, but best-equipped to formulate and act on his or her own individually held conception of the good life. We are each capable of deciding for ourselves what to think, believe, and do within the sphere of self-regarding behavior. We all share in this capacity equally. Whatever may be our otherwise terribly and radically unequal endowments, we share equally the capacity to decide for ourselves what is our own best conception of our individual self, future, and interests.
Read Article

 

INTRODUCTION TO THE TRANSCRIPT OF THE FLORIDA TOBACCO LITIGATION SYMPOSIUM— PUTTING THE 1997 SETTLEMENT INTO CONTEXT

Paul A. Lebel

On August 25, 1997, the five leading cigarette manufacturers in the United States agreed to pay to the State of Florida $11.3 billion in settlement of litigation that had been instituted in February 1995. Originally put forward as a Medicaid cost recovery action, the litigation evolved into a wide-ranging claim that the tobacco companies had violated the Racketeering Influenced Corrupt Organization Act (RICO), thus opening the door to penalties such as the disgorgement of all profits generated by the corrupt practice—the sale of cigarettes. During jury selection for the trial of the action in the Circuit Court in West Palm Beach, Florida, Governor Lawton Chiles announced the settlement resolving the dispute. The settlement involved a massive payment to the State and an agreement to change tobacco marketing practices in ways that would protect future generations of Floridians from the adverse health effects of tobacco products.
Read Article

 

TRANSCRIPT OF THE FLORIDA TOBACCO LITIGATION SYMPOSIUM—FACT, LAW, POLICY, AND SIGNIFICANCE

Florida State University College of Law

Read Article

 

LAGGING BEHIND THE TIMES: PARENTHOOD, CUSTODY, AND GENDER BIAS IN THE FAMILY COURT

Cynthia A. Mcneely

Society’s view of fathers has changed dramatically since the days when courts rarely intervened between the father-child relationship. The transformation can be traced to several sources, most notably the Industrial Revolution, which required fathers to remove their labor from the home to a remote facility. Mothers, viewed as physically and temperamentally weaker, were deemed incapable of adapting to the rigorous demands of the workplace and were singularly charged with the management of the domestic sphere. The feminization of the home-front resulted in mothers replacing fathers as the “primary and irreplaceable caregivers” in both “law and custom,” effectively leading to a “progressive loss of substance of the father’s authority and a diminution of his power in the family and over the family.” The stereotypical images of fathers as familial breadwinners and mothers as domestic caretakers and primary childrearers were born.
Read Article

 

PHYSICIAN PROFILES: CONSUMER PROTECTION OR EXCESSIVE EXPOSURE?

Ann Stewart

The medical profession has segregated society into disparate groups including physicians, non-physician providers, health insurers, malpractice liability insurers, regulatory boards, attorneys, and patient-consumers. Each plays a distinct role, yet all are expected to assimilate into a manageable, profitable, and productive health care system. However, today’s society seems unwilling to continue to accept the notion that doctor knows best, and that the patient is subordinate to the provider. Consumers are demanding more information about physicians, expansion of their legally protected rights, and greater involvement in their own health care decisions.
Read Article

 

DATABASE PROTECTION: NATIONAL AND INTERNATIONAL ATTEMPTS TO PROVIDE LEGAL PROTECTION FOR DATABASES

Terry M. Sanks

Originally, databases primarily existed on paper. Over the past thirty years, several American-initiated technological advances resulted in a new database medium. In the 1960s, the evolution of commercial computers resulted in the development and use of computer databases, commonly referred to as “electronic databases.” The use of electronic databases allows information to be accessed, manipulated, and used much faster than paper-based databases. In the mid-1980s, computer technology advanced to the point that computers became economical for household use. Thus, with more people using computers, the economic value of electronic databases has increased.
Read Article

 

FLORIDA’S LOCAL HISTORIC PRESERVATION ORDINANCES: MAINTAINING FLEXIBILITY WHILE AVOIDING VAGUENESS CLAIMS

George B. Abney

Local historic preservation ordinances differ from city to city and from state to state. Such differences should be expected as each ordinance is tailored to meet the needs of the particular community it serves. However, any local government enacting a historic preservation ordinance should focus on two concerns. First, the ordinance should be effective. It should establish a historic preservation program that actually protects structures and sites deemed worthy of preservation. Second, the ordinance should be able to withstand legal challenges. Careful procedures and sufficient standards for reviewing projects impacting historic properties should be established to ensure that a court will not overturn the decision of a historic preservation commission. While only fifteen percent of historic preservation commissions implementing local ordinances have had their decisions challenged in court, “[p]erhaps the greatest fear many commissions have is being sued by a disgruntled property owner and having the validity of the ordinance and the commission’s powers questioned, typically with great publicity.” Faced with a broad array of potential legal challenges—including claims concerning procedural due process, private property rights, the Americans With Disabilities Act (ADA), and the designation of religious properties—it is no wonder that keeping out of court is a priority for many historic preservation commissions.
Read Article