Appellate attorneys must tailor their advocacy to the court hearing their appeal. Each court of appeals has different jurisprudence, rules, traditions, and decision-making processes. Yet there are few articles on appellate advocacy tailored to a particular court. We wrote this article to help fill that gap. As former law clerks on the United States Court of Appeals for the Eleventh Circuit, we offer advice specifically for attorneys who practice before the Eleventh Circuit. Our advice is based on our experiences as clerks, as well as our analysis of the Eleventh Circuit’s rules, procedures, and public statistics. We offer no inside baseball about the Court but rather our personal views on how to draft a compelling brief and present a persuasive oral argument.
{"title":"Advocacy Before the Eleventh Circuit: A Clerk's Perspective","authors":"Kevin Golembiewski, J. Ettinger","doi":"10.2139/SSRN.3245584","DOIUrl":"https://doi.org/10.2139/SSRN.3245584","url":null,"abstract":"Appellate attorneys must tailor their advocacy to the court hearing their appeal. Each court of appeals has different jurisprudence, rules, traditions, and decision-making processes. Yet there are few articles on appellate advocacy tailored to a particular court. We wrote this article to help fill that gap. As former law clerks on the United States Court of Appeals for the Eleventh Circuit, we offer advice specifically for attorneys who practice before the Eleventh Circuit. Our advice is based on our experiences as clerks, as well as our analysis of the Eleventh Circuit’s rules, procedures, and public statistics. We offer no inside baseball about the Court but rather our personal views on how to draft a compelling brief and present a persuasive oral argument.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"73 1","pages":"1221"},"PeriodicalIF":0.0,"publicationDate":"2019-06-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44697906","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should "think small," examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.
{"title":"The Virtues of Thinking Small","authors":"C. Lain","doi":"10.31228/osf.io/cy2pr","DOIUrl":"https://doi.org/10.31228/osf.io/cy2pr","url":null,"abstract":"Professor Lain argues that, in efforts to determine how close American states are to abolishing the death penalty, scholars should \"think small,\" examining the ground level issues that affect its imposition. Among the issues she explores are exonerations of defendants, the legality and obtainability of lethal injection drugs, and the high costs of seeking and imposing capital punishment.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"67 1","pages":"397"},"PeriodicalIF":0.0,"publicationDate":"2018-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44182845","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'","authors":"C. Kahn, D. Song","doi":"10.2139/SSRN.3123867","DOIUrl":"https://doi.org/10.2139/SSRN.3123867","url":null,"abstract":"","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"72 1","pages":"1130"},"PeriodicalIF":0.0,"publicationDate":"2018-02-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47372267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Cyber breaches continue at an alarming pace with new vulnerability warnings an almost daily occurrence. Discovery of the industrial virus Stuxnet during 2010 introduced a global threat of malware focused toward disruption of industrial control devices. By the year 2020, it is estimated that over 30 billion Internet of Things (IoT) devices will exist. The IoT global market spend is estimated to grow from $591.7 billion in 2014 to $1.3 trillion in 2019 with a compound annual growth rate of 17%. The installed base of IoT endpoints will grow from 9.7 billion in 2014 to more than 25.6 billion in 2019. With this tremendous growth in both data and devices, a security nightmare appears more reasonable than not. The proliferation of novel consumer devices and increased Internet-dependent business and government data systems introduces vulnerabilities of unprecedented magnitude. This paper adds to our understanding of the development of cyber vulnerabilities resulting directly from: (1) the Stuxnet code and its progeny, and (2) widespread malware exposure associated with the IoT.
{"title":"Industrial Cyber Vulnerabilities: Lessons from Stuxnet and the Internet of Things","authors":"L. Trautman, Peter C. Ormerod","doi":"10.2139/SSRN.2982629","DOIUrl":"https://doi.org/10.2139/SSRN.2982629","url":null,"abstract":"Cyber breaches continue at an alarming pace with new vulnerability warnings an almost daily occurrence. Discovery of the industrial virus Stuxnet during 2010 introduced a global threat of malware focused toward disruption of industrial control devices. By the year 2020, it is estimated that over 30 billion Internet of Things (IoT) devices will exist. The IoT global market spend is estimated to grow from $591.7 billion in 2014 to $1.3 trillion in 2019 with a compound annual growth rate of 17%. The installed base of IoT endpoints will grow from 9.7 billion in 2014 to more than 25.6 billion in 2019. With this tremendous growth in both data and devices, a security nightmare appears more reasonable than not. The proliferation of novel consumer devices and increased Internet-dependent business and government data systems introduces vulnerabilities of unprecedented magnitude. \u0000This paper adds to our understanding of the development of cyber vulnerabilities resulting directly from: (1) the Stuxnet code and its progeny, and (2) widespread malware exposure associated with the IoT.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"72 1","pages":"761"},"PeriodicalIF":0.0,"publicationDate":"2017-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2982629","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41673341","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody.
{"title":"Habeas as Forum Allocation: A New Synthesis","authors":"C. M. Vázquez","doi":"10.2139/SSRN.2798171","DOIUrl":"https://doi.org/10.2139/SSRN.2798171","url":null,"abstract":"The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"71 1","pages":"645"},"PeriodicalIF":0.0,"publicationDate":"2016-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68332334","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Immigration Enforcement and State Post-Conviction Adjudications: Towards Nuanced Preemption and True Dialogical Federalism","authors":"Daniel Kanstroom","doi":"10.2139/ssrn.3467565","DOIUrl":"https://doi.org/10.2139/ssrn.3467565","url":null,"abstract":"","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"70 1","pages":"489-532"},"PeriodicalIF":0.0,"publicationDate":"2016-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68596421","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The landmark Supreme Court ruling in Citizens United has opened the floodgates to allow unlimited corporate campaign donations, and Supreme Court doctrine is shifting back to a Lochner era economic rights focus. At the same time, there are efforts underway across the United States to privatize public services in order to alleviate what proponents claim is a shortfall in revenue due to the recession. Within those privatization efforts, public policing has become a new front, with outsourcing and wholesale privatization of the police underway. This article adds to the existing scholarship a political analysis of privatization efforts, including how lobbying and campaign financing is making wholesale privatization in the area of policing a very real possibility. This Article looks at the example of Camden, New Jersey, where the entire police force was fired and replaced with a county-wide force in order to shed pension and wage obligations, as an incubator for future wholesale privatization of the police. Considering the trend of corporate lobbying through groups like ALEC (American Legislative Exchange Council) that write model legislation and deliver it to lawmakers, as well as unlimited campaign donations, this Article traces the current trend toward police privatization. It argues that without more transparency and some limitations to such expenditures, the public cannot fully and fairly participate in decisions about whether to relinquish force-protection to private corporations since they cannot anticipate the consequences for both public safety and democratic principles.
{"title":"The Siren Is Calling: Economic and Ideological Trends Toward Privatization of Public Police Forces","authors":"Karena Rahall","doi":"10.2139/SSRN.2310389","DOIUrl":"https://doi.org/10.2139/SSRN.2310389","url":null,"abstract":"The landmark Supreme Court ruling in Citizens United has opened the floodgates to allow unlimited corporate campaign donations, and Supreme Court doctrine is shifting back to a Lochner era economic rights focus. At the same time, there are efforts underway across the United States to privatize public services in order to alleviate what proponents claim is a shortfall in revenue due to the recession. Within those privatization efforts, public policing has become a new front, with outsourcing and wholesale privatization of the police underway. This article adds to the existing scholarship a political analysis of privatization efforts, including how lobbying and campaign financing is making wholesale privatization in the area of policing a very real possibility. This Article looks at the example of Camden, New Jersey, where the entire police force was fired and replaced with a county-wide force in order to shed pension and wage obligations, as an incubator for future wholesale privatization of the police. Considering the trend of corporate lobbying through groups like ALEC (American Legislative Exchange Council) that write model legislation and deliver it to lawmakers, as well as unlimited campaign donations, this Article traces the current trend toward police privatization. It argues that without more transparency and some limitations to such expenditures, the public cannot fully and fairly participate in decisions about whether to relinquish force-protection to private corporations since they cannot anticipate the consequences for both public safety and democratic principles.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"68 1","pages":"633"},"PeriodicalIF":0.0,"publicationDate":"2014-05-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68089477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article is the first in a series on the legal and sociological aspects of privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to “revenge porn.” The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy is his respite from the prying, conformist eyes of the rest of the world and his expectation that the things about himself that he wants to keep private will remain so. These ways of understanding privacy are variations on the same theme: that privacy is a tool of the individual “against the world.” None of them adequately protect personal privacy where sharing personal information with others is a precondition of modern life. This Article argues that privacy is really about trust. Rather than accept the traditional division between public and private, and rather than begin and end the discussion of privacy as an individual right, this Article bridges social science and the law to argue that disclosures in contexts of trust are private. Trusting relationships are determined by the presence of experience, strong overlapping networks, identity sharing, and other indicia derived from the totality of the circumstances. This conceptualization of privacy, and its related ways of defining when invasions of privacy occur, more effectively protects privacy in a modern digital world.
{"title":"Privacy as Trust: Sharing Personal Information in a Networked World","authors":"A. Waldman","doi":"10.2139/SSRN.2309632","DOIUrl":"https://doi.org/10.2139/SSRN.2309632","url":null,"abstract":"This Article is the first in a series on the legal and sociological aspects of privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to “revenge porn.” The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy is his respite from the prying, conformist eyes of the rest of the world and his expectation that the things about himself that he wants to keep private will remain so. These ways of understanding privacy are variations on the same theme: that privacy is a tool of the individual “against the world.” None of them adequately protect personal privacy where sharing personal information with others is a precondition of modern life. This Article argues that privacy is really about trust. Rather than accept the traditional division between public and private, and rather than begin and end the discussion of privacy as an individual right, this Article bridges social science and the law to argue that disclosures in contexts of trust are private. Trusting relationships are determined by the presence of experience, strong overlapping networks, identity sharing, and other indicia derived from the totality of the circumstances. This conceptualization of privacy, and its related ways of defining when invasions of privacy occur, more effectively protects privacy in a modern digital world.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"69 1","pages":"559"},"PeriodicalIF":0.0,"publicationDate":"2014-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2309632","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68088255","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Florida’s Stand Your Ground has stood center stage since the tragic killing of Trayvon Martin. On the one hand, certain sectors of society are calling for its repeal, and on the other, proponents vigorously defended its value and efficacy. Despite the public outcry for reform, every attempt to repeal or change the law has been defeated. This Article examines whether Florida’s Stand Your Ground law is inconsistent with commonly-held societal values, and if so, what might prompt a change in the law. To that end, this Article relies on the jurisprudential framework established by Myres S. McDougal and Harold D. Laswell which identifies the law as an expression of community interests and a source of authority rooted in community values. The common interests, or values, identified by McDougal and Laswell are power, enlightenment, wealth, well-being, skill, affection, respect, and rectitude. This Article examines these values in the context of Florida’s Stand Your Ground laws and analyzing them from competing perspectives to conclude the law is inconsistent with commonly-held community values. This Article concludes by exposing the legislature’s reticence to repeal the statute as a reflection of its entrenched mode of thinking. It calls for opposition voices to collaborate in advancing reform messages aimed at deconstructing the entrenched categories and restructuring them to prompt an amendment to or repeal of Florida’s Stand Your Ground statutory scheme.
{"title":"A Call for Change: A Contextual-Configurative Analysis of Florida’s “Stand Your Ground” Laws","authors":"E. Megale","doi":"10.2139/SSRN.2397887","DOIUrl":"https://doi.org/10.2139/SSRN.2397887","url":null,"abstract":"Florida’s Stand Your Ground has stood center stage since the tragic killing of Trayvon Martin. On the one hand, certain sectors of society are calling for its repeal, and on the other, proponents vigorously defended its value and efficacy. Despite the public outcry for reform, every attempt to repeal or change the law has been defeated. This Article examines whether Florida’s Stand Your Ground law is inconsistent with commonly-held societal values, and if so, what might prompt a change in the law. To that end, this Article relies on the jurisprudential framework established by Myres S. McDougal and Harold D. Laswell which identifies the law as an expression of community interests and a source of authority rooted in community values. The common interests, or values, identified by McDougal and Laswell are power, enlightenment, wealth, well-being, skill, affection, respect, and rectitude. This Article examines these values in the context of Florida’s Stand Your Ground laws and analyzing them from competing perspectives to conclude the law is inconsistent with commonly-held community values. This Article concludes by exposing the legislature’s reticence to repeal the statute as a reflection of its entrenched mode of thinking. It calls for opposition voices to collaborate in advancing reform messages aimed at deconstructing the entrenched categories and restructuring them to prompt an amendment to or repeal of Florida’s Stand Your Ground statutory scheme.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"68 1","pages":"1051"},"PeriodicalIF":0.0,"publicationDate":"2014-02-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68178913","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Local and state legislatures have taken active steps in developing a workable code of laws and regulations that apply specifically to floating homes. However, because these homes are on top of navigable waters and are physically capable of being towed across the high seas, there was a valid argument that such structures fall under maritime law and are therefore governed by federal admiralty statutes. The term “vessel” is defined in Section 3 of the U.S. Code as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” This definition is the threshold question that courts must answer before applying any federal law affecting vessels to a particular watercraft. The case law that developed since Section 3’s enactment has helped refine that broad definition into a more useable standard. This Note provides a comprehensive overview of Section 3’s place in admiralty law, from its codification in the late nineteenth century, throughout its evolution over the generations, leading to the Supreme Court’s 2013 decision in Lozman v. City of Riviera Beach, Fla., where it held that floating homes are not “vessels” as contemplated by federal statutes. Section II of this Note begins by introducing the parties and establishing the history involved in Lozman, a case that decided the question of whether a Florida resident’s floating home was a vessel subject to admiralty laws and federal jurisdiction. Historical case law and subsequent evaluations of maritime precedent, upon which both the Lozman Court and the parties relied, is detailed in Section III. This Note dissects the Lozman opinion in Section IV, discussing the Court’s reasoning for why it held that the floating home was not a “vessel” for jurisdictional purposes under Section 3. Section V then provides an analysis of the decision, examining the way the Court utilized precedent and incorporated traditional admiralty law tests. Lastly, Section VI lays out various policy concerns existing in the underpinnings of admiralty and property law that point in favor of the Supreme Court’s decision to exclude floating homes from federal regulation.
地方和州立法机构已采取积极步骤，制订专门适用于流动住房的切实可行的法律法规。然而，由于这些房屋位于通航水域之上，并且在物理上能够被拖过公海，因此有一个有效的论点认为，这些结构属于海事法，因此受联邦海事法规管辖。《美国法典》第3条对“船舶”一词的定义是:“对用作或能够用作水上运输工具的船舶或其他人工装置的任何描述。”这一定义是法院在将任何影响船舶的联邦法律适用于特定船舶之前必须回答的门槛问题。自第3条颁布以来发展起来的判例法有助于将这一宽泛的定义细化为更可用的标准。本文全面概述了第3条在海商法中的地位，从19世纪末的编纂，到几代人的演变，最后到最高法院2013年对佛罗里达州里维埃拉海滩市(Lozman v. City of Riviera Beach)一案的裁决。在该案中，最高法院认为，漂浮房屋不是联邦法规所设想的“船只”。本说明的第二部分首先介绍了Lozman案的当事人和历史，该案件决定了佛罗里达州居民的浮动房屋是否属于海事法和联邦管辖范围内的船只。Lozman法院和当事各方所依据的历史判例法和随后的海事判例评估详见第三节。本说明在第四节剖析Lozman一案的意见，讨论法院为何根据第三节裁定浮动住宅不是出于管辖权目的的“船只”的理由。然后，第五节对判决进行了分析，审查了法院利用先例和纳入传统海事法检验标准的方式。最后，第六节列出了海事法和财产法基础中存在的各种政策问题，这些问题都支持最高法院将浮动房屋排除在联邦监管之外的决定。
{"title":"Whatever Floats the 'Reasonable Observer's' Boat: An Examination of Lozman v. City of Riviera Beach, Florida and the Supreme Court's Ruling that Floating Homes Are Not Vessels","authors":"Kathryn D. Yankowski","doi":"10.2139/SSRN.2264866","DOIUrl":"https://doi.org/10.2139/SSRN.2264866","url":null,"abstract":"Local and state legislatures have taken active steps in developing a workable code of laws and regulations that apply specifically to floating homes. However, because these homes are on top of navigable waters and are physically capable of being towed across the high seas, there was a valid argument that such structures fall under maritime law and are therefore governed by federal admiralty statutes. The term “vessel” is defined in Section 3 of the U.S. Code as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” This definition is the threshold question that courts must answer before applying any federal law affecting vessels to a particular watercraft. The case law that developed since Section 3’s enactment has helped refine that broad definition into a more useable standard. This Note provides a comprehensive overview of Section 3’s place in admiralty law, from its codification in the late nineteenth century, throughout its evolution over the generations, leading to the Supreme Court’s 2013 decision in Lozman v. City of Riviera Beach, Fla., where it held that floating homes are not “vessels” as contemplated by federal statutes. Section II of this Note begins by introducing the parties and establishing the history involved in Lozman, a case that decided the question of whether a Florida resident’s floating home was a vessel subject to admiralty laws and federal jurisdiction. Historical case law and subsequent evaluations of maritime precedent, upon which both the Lozman Court and the parties relied, is detailed in Section III. This Note dissects the Lozman opinion in Section IV, discussing the Court’s reasoning for why it held that the floating home was not a “vessel” for jurisdictional purposes under Section 3. Section V then provides an analysis of the decision, examining the way the Court utilized precedent and incorporated traditional admiralty law tests. Lastly, Section VI lays out various policy concerns existing in the underpinnings of admiralty and property law that point in favor of the Supreme Court’s decision to exclude floating homes from federal regulation.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"67 1","pages":"975"},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68043775","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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