Dedication
This issue of the Florida State University Law Review is dedicated to Professor Steven G. Gey, a dear friend of the Law Review, the Florida State University College of Law, and innumerable others.
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COLOR COMMENTATORS OF THE BENCH
Adam Benforado
Featuring prominently in the last four sets of Supreme Court confirmation hearings, the judge-as-umpire analogy has become the dominant frame for understanding the role of the Justice and may also now act as a significant constraint on judicial behavior. Strong criticisms from legal academics and journalists attacking the realism of the analogy have had little destabilizing effect. This Essay argues that the best hope for shifting the public conception of the work of a Justice is to offer a counteranalogy that draws from an equally intuitive and familiar context, while also capturing the core essence of Supreme Court adjudication—the particular process of creative interpretation and explanation. The metaphor of the Justice as color commentator in the press box not only meets these criteria, but also makes explicit that judges are not robotic, objective arbiters. Moreover, in exposing the myth of judicial rationality and neutrality bolstered by the umpire analogy, the commentator alternative provides the possibility of helping Justices to better control for their biases and reducing damaging episodes of cognitive illiberalism. As further evidence of the appropriateness and robustness of the commentator analogy, the Essay concludes by demonstrating how sports commentating can be critiqued employing the precise implements developed by legal scholars to analyze judicial decisionmaking.
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SYMBOLIC RELIGIOUS EXPRESSION ON PUBLIC PROPERTY: IMPLICATIONS FOR THE INTEGRITY OF RELIGIOUS ASSOCIATIONS
Angela C. Carmella
When religious associations engage in symbolic expression, it matters whether they are on private property, in a public forum, or on closed government property. Only on private property and in public forums will the symbolic proclamations retain a connection with the speaker. When associations donate religious symbols to the state for display on closed government property, the state appropriates the symbols for its own purposes and as its own expression. In order for the display to comport with the current reading of the Establishment Clause, the government cannot adopt the religious message but must transform it into one that gives primacy to some civic or secular meaning. Government thus co-opts and dilutes the religious messages. Indeed, the mediating function of religious associations in society, which depend upon shared bonds of identity, purpose and expression, are weakened; tensions between church and state and between and among associations in society, necessary to this function, are relaxed. Other societal functions, such as limiting state power, are also threatened.
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NAVIGATING THE PATH OF THE SUPREME APPOINTMENT
Charles W. “Rocky” Rhodes
Progressives thought they had cause to celebrate. A Democrat in the White House, a Senate controlled by Democrats, and two announced Supreme Court vacancies in less than a one-year period. The stars appeared to be aligned perfectly—not just one, but two opportunities for bold nominations of liberal judicial visionaries, like the icons of the Warren Court, to battle the Roberts Court’s conservative stalwarts, Justices Scalia and Thomas.
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FAIRNESS AND UTILITY IN PRODUCTS LIABILITY: BALANCING INDIVIDUAL RIGHTS AND SOCIAL WELFARE
John L. Watts
The history of moral philosophy can be divided roughly into two distinct, warring camps: deontologists and consequentialists. Deontologists, or nonconsequentialists, judge the morality of an action by assessing its intrinsic worth instead of focusing on the consequences of the action. Perhaps, deontological thought is epitomized at its most glorious extreme by this maxim: “Do what is right though it results in the demise of the world.” Consequentialists, on the other hand, judge the morality of action by evaluating results. Utilitarianism, the dominant consequentialist theory, views the morally just act as the one that creates the greatest good for the greatest number. These, of course, are oversimplified but useful generalizations.
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LOST IN DOCTRINE: PARTICULAR SOCIAL GROUP, CHILD SOLDIERS, AND THE FAILURE OF U.S. ASYLUM LAW TO PROTECT EXPLOITED CHILDREN
Tessa Davis
Exploited and persecuted, child soldiers live lives dominated by violence, fear, and death. Very few will find security within their own nations or abroad. Subjected to exclusionary bars or rigid interpretations of the particular social group ground for asylum, U.S. asylum law frequently functions to exclude those lucky few children who are able to escape their persecutors. Scholars writing on child soldiers and asylum law focus, almost exclusively, on the exclusionary bars and question of whether children are persecutors or victims of atrocities. These concerns are critical because how courts view child soldiers determines whether they will grant or deny asylum or withholding of deportation, however, child soldiers face further challenges to gaining admission to the U.S. This Note argues that courts must recognize children as targets of persecution by groups that systematically exploit them as child soldiers. Recognizing children as belonging to contextually-defined, particular social groups for the purposes of past persecution opens the door to grants of humanitarian asylum thereby providing another avenue of protection for children who have suffered lifealtering persecution and exploitation.
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THE CLASS ACTION FAIRNESS ACT OF 2005: THE LIMITS OF ITS TEXT AND THE NEED FOR LEGISLATIVE CLARIFICATION, NOT JUDICIAL INTERPRETATION
Kristen L. Wenger
“She brought a small town to its feet and a huge company to its knees.” This is the tagline of the blockbuster movie Erin Brockovich, a true story of how a single mother recovered an enormous settlement on behalf of a victimized rural town. It portrays the conventional view that class action lawsuits frequently pit the successful underdog against the powerful and greedy corporation.
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