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Pirate [pahy-ruht]: Defined Searching the Seven Seas for an International Answer FALL 2011

greetings F R O M C O A S TA L L A W

As I write this, we are beginning a new school year and have welcomed a new class of 1Ls. They are all filled with excitement, anticipation, and more than a little anxiety. Our task is to begin to prepare them for entry into the legal profession in the next three years. When we survey experienced lawyers they consistently indicate practical legal experience is among the most marketable attributes a law school graduate can possess. They make it clear that those skills can immediately add value to the firm or legal organization where the young lawyer will work after graduation. Coastal Law strongly believes in the importance of legal work experience and I am pleased to report the school is continuing to work to increase the already numerous opportunities we make available to our students.

C. Peter Goplerud III, Dean and Professor of Law

Currently Coastal Law students earn academic credit while acquiring practical skills through our legal clinics - Family Law, Consumer Law, Immigrant Rights, Housing Rights, Disabilities and Benefits and, in 2012, Criminal Defense. Students may also choose to participate in the Caribbean Law Clinic where they will work to assess legal problems confronting individual Caribbean countries or states. Another way our students obtain practical experience is through our Skills Labs, which I am proud to say are unique to Coastal Law. In the Labs, students work in small groups under direct faculty supervision to resolve pro bono cases in Northeast Florida. These courses also permit students the chance to experience one or more practice areas and to assess their interest in practicing in that area upon graduation. Students also earn course credit while obtaining legal work experience through our externship programs. As you will read elsewhere in this issue, we have recently taken the program to a national level so Coastal Law students may both acquire legal work experience and make connections in the communities in which they hope to eventually start careers. Many other students obtain practical skills by working on pro bono cases identified through our Pro Bono Program. Last year, Coastal Law students contributed more than 22,000 hours of legal pro bono hours! Finally, later this fall we will launch the Florida Coastal School of Law Public Interest Research Bureau, which will provide free legal research services to lawyers working for public interest law organizations. The service will also be provided at no cost to participating legal services programs. We are very committed to providing Coastal Law students with vast opportunities to obtain meaningful legal work experience. We do this, not just because it is consistent with our mission to be a leader in legal education, but because we are certain the skills they acquire and connections they make will benefit them long into their successful careers wherever they choose to practice. Thank you again for your continued support of Coastal Law. Whether one of our law school contemporaries, a prospective student, a member of the legal community or one of our more than 4,000 alumni, I hope you enjoy our latest issue of Coastal Law Magazine.

C. Peter Goplerud III


Coastal Law Magazine | Fall 2011

intracoastal FALL 2011 | VOL. 4, NO. 2



Who Exactly is a Pirate? The law of piracy is a mix of national and international laws dating back hundreds of years. By James J. Woodruff II Associate Professor of Lawyering Process Illustration by Tony Rodriguez, Tact Designs


Debating Independence Versus Accountability in Judicial Systems Professor Pimentel consults in Nepal on the judiciary provisions for that country’s new constitution.


The Separation of Powers and Addressing the ‘Salad’ Class of ’99 Alumnus talks this and more from the West Bank. Illustration by Karen Kurycki

Illustration by Heather Blanton


6 News and Events 23 Faculty News 28 Alumni News 32 Snapshots 34 Q & A

Coastal Law Magazine | Fall 2011


BOARD OF ADVISORS F L O R I D A C O A S TA L SCHOOL OF L AW BARBARA “BABS” STRICKLAND, CHAIR The Suddath Companies AUDREY MCKIBBIN MORAN Senior Vice President of Social Responsibility and Community Advocacy Baptist Health HENRY M. COXE III Director Bedell, Dittmar, DeVault, Pillans & Coxe, P.A. PAUL I. PEREZ Executive Vice President and Chief Compliance Officer Fidelity National Title Group, Inc. ROBERT M. RHODES Of Counsel Foley & Lardner LLP KENNETH L. SHROPSHIRE David W. Hauck Professor Wharton School of the University of Pennsylvania PAUL VANCE Senior Vice President of Football Operations and General Counsel Jacksonville Jaguars

PUBLISHER C. Peter Goplerud III, Dean and Professor of Law EDITOR J. Brooks Terry, Director of Marketing and Communications MANAGING EDITOR Margaret Widman Dees, Director of Institutional Advancement CONTRIBUTORS Susanna Barton Katie Cooper Alan Smodic Rick Graff Daniel Cohn DESIGN AND PRODUCTION BroadBased Communications, Inc. PHOTOGRAPHY Evan Hampton Jim LaBranche Heather Blanton Daniel Cohn MAIN NUMBER 904.680.7700 ADMISSIONS 904.680.7710 ALUMNI 904.256.1212 MARKETING AND COMMUNICATIONS 904.680.7730 REGISTRAR 904.680.7631 INSTITUTIONAL ADVANCEMENT 904.680.7649

Coastal Law Magazine is published by the Florida Coastal School of Law Office of Institutional Advancement. Address correspondence to: 8787 Baypine Rd., Jacksonville FL 32256 Telephone: 904.256.1212 Fax: 904.256.1104 Email: Web: or


Coastal Law Magazine | Fall 2011

Connect with former classmates  and faculty members at Florida Coastal School of Law’s 2011 Alumni Day.

Friday, October 21 Join us for a series of free CLEs,  social events, and tours of our  new administration building.  Alumni Day also marks the 10th  reunion of the Class of 2001  and the 5th reunion for the  Class of 2006. For complete schedule and  registration information, visit

2011 Alumni Day | Friday, October 21 | 2011 Alumni

Scan this code for more information about Alumni Day. For a complete listing of upcoming events visit Day

Need more copies or back issues? CONTACT THE ALUMNI OFFICE AT (904) 256-1212 OR FCSLALUMNI@FCSL.EDU

*The original illustration covers of both 2009 Coastal Law Magazine issues earned Awards of Excellence, as recognized by CASE District III.

Coastal Law Magazine | Fall 2011



Citizenship Day provides opportunities for immigrant community Florida Coastal School of Law, supported by the American Immigration Lawyers and the Jacksonville Bar Association, hosted a day long outreach event in April for the local immigrant community. More than 25 local attorneys providing pro bono expertise helped make the Second Annual Citizenship Day an effective workshop for those in need. Participating attorneys helped local immigrants begin their citizenship application process. They shared information on the eligibility requirements for naturalization, how to fill out an application and how to analyze applications. The attorneys also shared information about local services that could help them prepare for the required civics test. More attorneys took part in this year’s event than last year, according to Florida Coastal Immigrant Rights Clinic professor Ericka Curran. Kathy Para, pro bono development coordinator with Jacksonville Area Legal Aid, said she is pleased to be a partner of Curran and the clinic students in the initiative. “The Florida Coastal School of Law Immigrant Rights Clinic continues to be a leading force in providing excellent services to our immigrant residents,” Para said. “As the number of immigrants grows here in Northeast Florida, it’s important that we are able to collaborate with organizations like Florida Coastal School of Law to make these critical services possible.” She said Jacksonville Area Legal Aid staff is “deeply grateful for Florida Coastal’s commitment to serve our community.”


Coastal Law Magazine | Fall 2011

Students rock Mardi Gras sports law competition

is one of three schools in the country offering a sports law certificate program. The annual competition allows the law school to showcase the strength of its students to a national audience and industry specialists.

Florida Coastal School of Law competitors won the 2011 National Sports Law Moot Court Competition, known as the Mardi Gras Competition due to its timing during the week before Mardi Gras, this spring in New Orleans.

“This gives us an opportunity to demonstrate to the legal community the consistently high quality of our students,” Moody said. “What we’re able to get in, in an objective way, is confirmation of what I see across the podium when I’m teaching — and that’s some of the best law students in the country.”

The team’s success followed an impressive showing during the 2010 competition, won by Dazi Lenoir Williams and Drew Parrish-Bennett, who also was named competitor of the year. A statement on the organizers’ website said, “all of the judges were impressed with the quality of the teams from the first round through the finals.” The Sports Lawyers Journal and Sports Lawyers Association helped put the competition together. Former president of the Washington Nationals and Atlanta Braves Stan Kasten, a Columbia Law School graduate, was the celebrity guest judge during the final round. “The competition draws together some of the best sports lawyers in the country to serve as judges,” said Alexander G. “Sander” Moody of the competition, which draws participants from between 35 and 45 law schools annually. “The competition evaluates students on research, writing and oral arguments.”

The school’s Center for Law and Sports includes some of the country’s top sports law attorneys, including Dean Peter Goplerud, former Olympic swimmer and Title IX expert Nancy Hogshead-Makar, Roger Groves and former professional baseball player Rick Karcher. Goplerud is one of the primary authors of the sports law case book. Coastal Law’s Sports Law Certificate program, which includes a core of coordinated courses about sports industry functions under state and federal laws, is administered through the school’s Center for Law and Sports. “We’re all about advocacy — that’s what is special about Mardi Gras,” said Moody, who coaches the team. “It gives our moot court the opportunity to draw on the law school’s recognized expertise in sports law and work with professors renowned in the field.”

The school’s consistent achievement has helped it preserve a respectable foothold in the country’s elite sports law field. Coastal Law

After successful first year, Skills Lab offerings to expand

with criminal law, in conjunction with The Office of the Public Defender, and wrongful convictions.

Florida Coastal School of Law’s Skills Lab program recently celebrated its first year of course offerings, with plans to increase the number and scope of its classes. Skills Lab courses emphasize practical skills and have become increasingly popular with Coastal Law students.

And while Skills Lab courses are only a year old, DuBose believes the program has already enhanced the school’s reputation within both the profession and the community.

“The main thing we heard from law offices is that they wanted candidates with experience,” said Rosa DuBose, Coastal Law’s Associate Dean of Academic Affairs, who oversees the program. “Experiential learning is becoming increasingly important. That’s why we developed the Skills Lab courses.”

“Academics and theory are very important, of course,” said DuBose. “But our goal in teaching is to have students ready to enter the legal profession as practitioners. With Skills Lab, the live client and practical experiences gained in the pro bono work look great on a resume, and give our graduates a leg up on the competition.”

In these specialized courses, students work closely with Coastal Law faculty members on pro bono cases brought from the faculty’s own practices and firms. With the faculty member now in the role of practicing attorney, students obtain “live client” experience, learn practical skills and professionalism, receive additional advice and mentoring, and develop an appreciation for the importance of pro bono work. “The students I have talked to describe the Skills Lab as an amazing experience,” said DuBose. “The work energizes them. Many have told me, ‘This is why I came to law school.’” Current Skills Lab courses have centered on family law, with petitions, notices of hearing, settlement agreements and final orders; and trusts and estates, covering such matters as powers of attorney, wills, living wills and healthcare surrogates. Upcoming Skills Lab courses will deal

Coastal Law Magazine | Fall 2011


news & events Homepage named among country’s top 10 for law schools Florida Coastal School of Law’s website has earned rave reviews from staff and students over the years, and now results from a national study confirm its excellence. A comprehensive report compiled by law librarians from Yale Law School and Georgetown University Law Center – Jason Eiseman and Roger V. Skalbeck, respectively - identified the best law school homepages based on objective criteria. Aptly called “Top Law School Homepages,” the study proved it does not take special design skills or expensive technology to have an effective law school website. In 2009, the school tied for 11th place. In 2010, the school tied for sixth out of the approximately 200 sites reviewed. The study considered design patterns and metadata, accessibility and validation and communications in its ranking. Under design patterns, worth 24 points, the study assessed seven qualities: search form, RSS autodiscovery, content carousel, embedded media, microformats, Dublin Core and HTML5. Under accessibility and validation, worth 32 points, the study considered headings, wave errors, CSS, alt attribute and valid markup. The communications portion of the comparison looked for major components like meaningful page title, address, phone number, social media links, thumbnail images, news headlines, favicon and other elements. Florida Coastal School of Law’s site received high marks in accessibility and communications.

The marketing and communications department at Florida Coastal School of Law oversees the website’s content strategy and considers branding elements for the site.

The study proved it does not take special design skills or expensive technology to have an effective law school website. “It’s about keeping your eye on some of the global trends - what other schools and companies are doing that works,” said Brooks Terry, director of marketing and communications for Coastal Law. He described the 2009 11th place ranking as “pleasantly surprising.” “We had applied our own institutional knowledge to enhancing the website not knowing they’d be looking at it,” said Terry of the first Yale and Georgetown study. “When we saw we were on the right track, that was reassuring. Going into the second cycle, we had a much more educated guess about what they’d be looking at.” Florida Coastal School of Law adopted the practices of measuring its effectiveness and shared some of its findings during a panel discussion at the annual Center for Computer-Assisted Legal Instruction conference. Representatives from the law school’s communications and IT departments spoke during the conference. During the gathering, Coastal Law experts shared how the school uses the report to “internally benchmark website effectiveness while also looking for opportunities to continuously improve,” Terry said. Terry said he does not expect any major overhauls to occur on the website during the next year or two. “We are always trying to give our constituents the best possible experience we can,” Terry said.


Coastal Law Magazine | Fall 2011

Alternative spring break cultivates student outreach work, assists migrant workers For the second consecutive year, 35 Coastal Law students participated in the Alternative Spring Break Migrant Worker Justice Immersion Program. The outreach experience brought students to migrant labor camps in North and Central Florida. The inventive spring break initiative, in partnership with Florida Legal Services Migrant Farmworker Justice Program, is directed by Coastal Law faculty advisors Robert Hornstein and Karen Millard. Daniela Dwyer of the migrant farmworker program, a migrant rights attorney, oversees the program during Spring Break. “The concept of an alternative spring break program that focuses on migrant labor rights and issues helps meet a critical need for an underserved community,” Hornstein said. “The program simultaneously exposes law students to the pressing needs of an impoverished population, the vital importance of equal access to the courts and the promise of the law as an instrument for social justice.” He said the intense, week-long immersion in migrant labor issues has influenced the way students think.

Florida Coastal welcomes new multicultural affairs dean In July, Alicia Edwards joined Florida Coastal School of Law as the Assistant Dean of Multicultural Affairs. Edwards brings more than 10 years of direct student experience in higher education, and has worked in multicultural affairs at the University of Iowa and the University of Michigan. Most recently, she was Assistant Director, Student Activities & Multicultural Student Affairs at Southern Methodist University (SMU), where she was the recipient of the 2010 Outstanding Administrator Students’ Association Award for “giving unselfishly to the students and the University as a whole.” Although Coastal Law students come from 46 states and numerous countries, its enrollment pales in comparison to those found at the Big Ten universities and the larger SMU. Edwards has no concerns, and is in fact excited, about the more intimate setting. “The issues and the work are the same, regardless of the ‘clientele,’” Edwards said. “I thrive on building true, sincere relationships with students, faculty and staff. I can already see that Florida Coastal operates like a family with a positive environment that will promote that type of interaction.” Edwards’ passion for multiculturalism springs from her own background. Bi-racial, she recounts growing up in a household where respect and celebration of both cultures were a huge part of daily life. As

Last year’s experience made such a profound impact that a student steering committee was formed in the fall of 2010. The group organized and further developed the program so it would have continuity and longterm sustainability, Hornstein said. The steering committee worked with Florida Legal Services to organize this spring’s program. Coastal Law student members of the steering committee included Nicole C. Devito, Mark A. Cox, John R. Nilon, Adam Beaugh, John K. Rice, Kevin D. Dewar, David E. Vergara, Christopher McLean, Manuel V. Souza, Jessica Y. Lazo, Keisha E. Cason, Weon Hyuck Chang and Cynthia Barnes. “Migrant workers have always existed in the shadows of the nation’s commitment to social justice,” Hornstein said. “Because of their marginal social status, they have historically been the victims of severe economic abuse. Immersion in an intense, week-long migrant labor project can profoundly affect and influence law students and the way they think about access to justice and the ultimate paths they choose to follow through the law.”

a student and administrator at the University of Iowa, she found a home in the multicultural affairs department, realizing that she could make her passion her career. Her experience expanded greatly at the University of Michigan, a school recognized for its work in diversity, social justice and driving a dialogue on multicultural issues. Edwards’ early plans are to review the school’s cultural inclusion programs, examine the services offered to underrepresented student groups to help them succeed, and ensure that diversity training for faculty, staff and students gives everyone the cultural competency tools necessary to work with different cultures. Edwards laughed when asked if it were a coincidence that her job arc has taken her to progressively warmer climates. “I don’t think I would ever move north again,” she said. Coastal Law’s Office of Multicultural Affairs addresses the needs, issues and concerns of students in nationality, ethnicity, language, gender, and sexual orientation groups. Its functions include representing and presenting these students’ perspectives to the Coastal Law community. The office supports diversity programming to develop appreciation for multiculturalism, and promotes the academic and personal growth of underrepresented student groups.

Coastal Law Magazine | Fall 2011


news & events Former Guantánamo detainee naval lawyer Charlie Swift speaks at Coastal Law In April, Florida Coastal School of Law’s special programs committee hosted former Navy Judge Advocate General’s Corps (JAG) Officer Charlie Swift. Swift spoke about his experiences with the landmark United States Supreme Court decision Hamdan v. Rumsfeld. During his introduction of Swift, Robert Hornstein, Coastal Law Assistant Professor of Law and special programs committee member discussed great lawyers of the past who were challenged as citizens to act against popular sentiment. These lawyers displayed the courage, at the expense of their own personal interests, to carry out their responsibility to the greater ideal. To this list of lawyers, Hornstein noted, history will add the name of Charlie Swift. Swift gained national attention when as a JAG officer he was assigned to defend Osama Bin Laden’s driver Salim Ahmed Hamdan. Swift joined up with legal scholar Neal Katyal and sued the President and Secretary of Defense over the new military-tribunal system, an action that culminated in the 2006 United States Supreme Court decision Hamdan v. Rumsfeld. In that case, the Supreme Court held that military commissions set up by the Bush administration to try detainees at Guantánamo Bay lacked “the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949.” Hamdan v. Rumsfeld is considered one of the most significant Supreme Court cases ever decided.

In 2006, Swift retired from the U.S. Navy, but remained on the Hamdan case as a pro bono civilian counsel. Swift later served as visiting professor and head of the Humanitarian Law Clinic at Emory University School of Law in Atlanta, Georgia. He has since entered private practice in Seattle, Washington, opening the law partnership of Swift & McDonald, P.S., specializing in state, federal and military criminal defense.

Well received by the attendees, Swift was very generous with his time, staying late after his prepared remarks to answer a range of questions from students and faculty about Hamdan, his client, and the professional toll resulting from such a high-profile case.

The special programs committee felt that Swift’s story was a powerful, compelling lesson to Coastal Law students about professional courage, the rule of law and ensuring that those who have no other allies are still represented in our system.

School’s nationwide externship program helps students gain experience

in hopes of making summer externship opportunities less costly. “We believe summer externships give students not only that critical legal work experience, but it predisposes them to professionalism.”

Whether it’s grades and classes or recommendations and referrals, employers consider a broad palette of qualities in the curriculum vitae of new law school graduates. But what stands out the most? It’s experience, according to recent trends. And a Florida Coastal School of Law program is helping local students sharpen their edge in this area. Coastal Law’s summer externship program began in January 2010, serving about 30 Coastal Law students. But the program has caught traction this year with a more varied docket of for-credit, no-pay job choices. Positions are available for students in public service organizations, government groups, pro bono groups, Legal Aid offices and public defenders offices nationwide. “The number-one thing employers are looking for when they hire a student is prior work experience in the area they hope to hire someone — we know it’s important,” said Terri Davlantes, Vice Dean and Professor of Law at Coastal Law. She has been building up the school’s summer externship program, talking to organizations and forging relationships with public service entities for more than a year. She has also been talking to students about places they could feasibly live rent free during the summer, 10

Coastal Law Magazine | Fall 2011

This year, more students took advantage of summer externship programs around the country. The externships ranged from experiences at the Centers for Disease Control and Prevention to work in a disability office. To participate, students are able to peruse opportunities on the school’s employment website. The externships are posted alongside jobs that are available for pay. Employers, who supervise the students for credit, select students best suited for the experience. Professor Lynn McDowell, Director of Clinical Programs at Coastal Law, is coordinating the work. The work is not a requirement for graduation, but Coastal Law administrators suggest each student have 400 hours of legal work experience while they are in school. Students may also achieve the 400 hours through the five legal clinics offered at Coastal Law during the summer. “We want to make sure students get indoctrinated in that belief that they are serving the underserved,” Davlantes said. “This helps students be much more marketable and more appreciative of the need to serve.” Organizers hope to grow the program this year, targeting areas where students may want to return after graduation.

Local Attorney Schulz wins Ehrlich Award Local Holland & Knight partner George A. “Buddy” Schulz won this year’s prestigious Justice Raymond Ehrlich Award. Florida Coastal School of Law’s Student Bar Association (SBA) presented the award to Schulz during a February event at the Main Library in downtown Jacksonville. The SBA selects a recipient who “embodies professionalism and humanitarianism and integrity in the Jacksonville community.” The award is given in the name of Ehrlich, a retired state Court Chief Justice, serviceman and well known civil trial lawyer who died in 2005. On the Supreme Court, Ehrlich was “known for his clear and definitive decisions,” according to his obituary. Past winners of the prestigious award include U.S. District Judge Timothy Corrigan, U.S. Court of Appeals Judge Gerald Tjoflat, Florida Supreme Court Justice Peggy Quince and local attorney Wayne Hogan. The award is in its fifth year.

Schulz is proud Florida Coastal holds Ehrlich out as an example of influence and is pleased to be recognized in his name. Schulz, a board-certified trial lawyer who served as a naval officer in Vietnam and earned his law degree from the University of Florida, was active in the formation of Florida Coastal School of Law’s shadow initiative. He is past chairman of Holland & Knight’s litigation department and chairs the firm’s public and charitable service departments. In this

capacity, Schulz coordinates the firm’s pro bono and community service work. He has been a member of the Florida Bar’s Civil Rules and Evidence Code committees and as chairman of the Fourth Circuit Judicial Nominating Commission. He has been practicing law since 1973 and serves as a volunteer to the Guardian Ad Litem Program and as a trustee emeritus of the University of Florida College of Law. Schulz said it was difficult to express what he was feeling at the time he received the award. Schulz worked next door to Ehrlich at Holland & Knight for 10 years following Ehrlich’s retirement from the Florida Supreme Court. He said he learned from Ehrlich daily. “Most of all he was a man of honor and humility, and for those who knew him well, a man of immense humor — he always seemed to have a quip or a funny story for the occasion,” Schulz recalled. “We would often ask him a serious legal question or for his conscientious advice, and he would remind us that he was forced by law to leave the court at the mandatory retirement age of 70 — so we shouldn’t expect much from a man who had been determined to be ‘constitutionally senile.’” Schulz regularly received significant counsel from Ehrlich during their time together at Holland & Knight. “The day I remember most was the one when I came to him for advice on a personal ethical issue,” Schulz said. “He gave me sound advice and as I was leaving he said, ‘Always remember that your reputation is who people think you are — your character is who you are.’” Schulz is proud Florida Coastal holds Ehrlich out as an example of influence and is pleased to be recognized in his name. “By highlighting Ray Ehrlich, the gentleman and the gentle lawyer, and recounting his incomparable achievements, Florida Coastal School of Law plays an important role in encouraging and ensuring that future generations of lawyers will follow his example as civil and courteous practitioners of the profession of law,” he said.

Above: Schulz (center) with Coastal Law SBA Officers Chris Basler and Jessica Sexton

Coastal Law Magazine | Fall 2011


cover story

Pirate [pahy-ruht]: Defined Searching the Seven Seas for an International Answer



Associate Professor of Lawyering Process Illustration by Tony Rodriguez


Coastal Law Magazine | Fall 2011

Who, exactly, is a pirate? Watching Johnny Depp portray Jack Sparrow or Errol Flynn take the big screen as Captain Blood gives the viewer some idea of the answer.1 We may also remember Long John Silver and Captain Hook from our childhoods.2 In fact, the law of piracy is a mix of national and international laws dating back hundreds of years. Most of these laws provide specific acts in which an individual must engage to be considered a pirate. However, as the world’s political climate, technology, and tactics change, the legal definition of a pirate has remained remarkably stable.

Coastal Law Magazine | Fall 2011


The Term “Pirate” as Vaguely Defined by the United States The United States Constitution gives Congress the power to “define and punish Piracies” under the Offense Clause.3 Pursuant to this clause, Congress set out its definition and punishments under Title 18, Chapter 81 of the United States Code. Section 1651 states, “Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.”4 This definition is weak on a number of fronts. Most glaring is that it delegates the definition of piracy to “the law of nations” without giving any clear limitations on what nations should be included in determining the definition or what defines “the law of nations.” Is a judge interpreting section 1651 required to make a survey of all the foreign nations’ laws regarding piracy? If so, should the judge limit the survey to the law, as it existed at the time section 1651 was enacted or survey the nations’ current law on the subject? While international treaties do exist that define piracy, is a judge allowed to rely solely on those treaties?5 Do a certain number of nations need to agree in order for the specified act to be considered that of a pirate? Looking to the plain meaning of the language used is not helpful in determining the answer to our questions. As was already discussed, the phrase “the law of nations” is open to interpretation. In 1820, the United States Supreme Court, in United States v. Smith, answered the questions surrounding “the law of nations” quandary.6 In 1819, a jury found Thomas Smith committed a number of acts and submitted a special verdict for review by the Supreme Court.7 The trial court, it turned out, was uncertain as to the definition of piracy.8 The special verdict stated as follows: We, of the jury, find, that the prisoner, Thomas Smith, in the month of March, 1819, and others, were part of the crew of a private armed vessel, called the Creollo, (commissioned by the government of Buenos Ayres, a colony then at war with Spain,) and lying in the port of Margaritta; that in the month of March, 1819, the said prisoner and others of the crew mutinied, confined their officer, left the vessel, and in the said port of Margaritta, seized by violence a vessel called the Irresistible, a private armed vessel, lying in that port, commissioned by the government of Artigas, who was also at war with Spain; that the said prisoner and others, having so possessed themselves of the


Coastal Law Magazine | Fall 2011

said vessel, the Irresistible, appointed their officers, proceeded to sea on a cruize, without any documents or commission whatever; and while on that cruize, in the month of April, 1819, on the high seas, committed the offence charged in the indictment, by the plunder and robbery of the Spanish vessel therein mentioned. If the plunder and robbery aforesaid be piracy under the act of the Congress of the United States, entitled, ‘An act to protect the commerce of the United States, and punish the crime of piracy,’ then we find the said prisoner guilty; if the plunder and robbery, above stated, be not piracy under the said act of Congress, 9 then we find him, not guilty.

Upon reaching the Supreme Court, the defendant argued that Congress had a duty to define piracy in terms and not to leave the definition to judicial interpretation.10 He held to the position that the Constitution’s requirement that Congress define piracy illustrated the framers’ belief that the law of nations was an insufficient source for the task.11 As Congress had been given the task of defining what constitutes piracy, it was necessary for Congress to create a definition of acts that amounted to piratical conduct.12 The defendant believed that if the constitutional framers had confidence in the definition provided by the “law of nations” they simply would have given Congress the power to punish the offenses and relieve it of the duty to define piracy.13 The argument was made that “Congress must define [piracy] as the constitution has defined treason, not by referring to the law of nations in one case, or to the common law in the other, but by giving a distinct, intelligible explanation of the nature of the offence in the act itself.”14 This was a strong argument as the law of nations provided a definition for treason, but the constitutional drafters chose to define it in spite of such a body of law.15 The defendant argued that a crime should have a strict definition as to place the violators on notice the acts they are engaged in are against the law;16 that such matters should not be left to the whims of judicial interpretation.17 It was also brought to the Court’s attention that the “writers on public law do not define the crime of piracy with precision and certainty.”18 The Supreme Court rejected the defendant’s text-based arguments as taking “too narrow a view of the language of the constitution.”19 Instead, the majority relied upon “the works of jurists, writing professedly on the public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law” to define the law of nations.20 In order to develop a definition, the

Court reviewed a long list of legal scholars’ opinions. They also examined court decisions on the subject. Most of the authorities reviewed were included in a rather lengthy footnote.21 Based on these sources, the Court stated the common law defined piracy as a punishable offense that is against the law of nations and a pirate an enemy of the human race.22 Of particular interest to the Court were the writings of Sir Charles Hedges and William Blackstone. The English Admiralty Court under Sir Charles Hedges had declared the crime of piracy as “being a robbery committed within the jurisdiction of the admiralty.”23 Blackstone was referenced by the Court as stating, “he considered the common law definition as distinguishable in no essential respect from the law of nations.”24 In the end, the Court stated the following definition of piracy: So that, whether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find, that they universally treat of piracy as an offence against the law of nations, and that its true definition by that law is robbery upon the sea. And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offence against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of 25 nations, both for its definition and punishment.

The Court’s opinion on the matter was not unanimous. Justice Livingston provided a dissenting opinion that raised serious constitutional concerns. He believed that Congress was obligated to give a definition of piracy “in terms, and not to refer the citizens of the United States for rules of conduct to the statutes or laws of any foreign country, with which it is not to be presumed that they are acquainted.”26 Justice Livingston supported the position that it was not fair to punish someone with death when Congress subjected its citizens to a law of nations definition.27 The key finding by Livingston was “that there is not to be found in the act that definition of piracy which the constitution requires.”28 Perhaps not being comfortable with leaving the whole issue of defining piracy to the law of nations, several additional statutes were passed by Congress to further define what acts are piratical. The first of these statutes is currently found at § 1652 of the United States Code. It states as follows:

Whoever, being a citizen of the United States, commits any murder or robbery, or any act of hostility against the United States, or against any citizen thereof, on the high seas, under color of any commission from any foreign prince, or state, or on pretense of authority from any person, is a pirate, and shall be imprisoned for life.

While this definition does a great job of defining what acts someone must engage in and where those acts must occur in order to be considered a pirate, it limits its scope to U.S. citizens. This became an issue in the case of United States v. Baker.29 In Baker, the crew of a private armed schooner named Savannah took an American vessel, the Joseph, by force on June 3, 1861.30 Prior to taking the Joseph, the Savannah, its captain and its crew had received a commission from President Jefferson Davis of the Confederate States of America to carry out raids on U.S. shipping during the war between the states.31 The prosecutors brought multiple counts against the captain and crew. In addition to being charged with piracy under the language of § 1651, four of the crew were also charged with violating the language of § 1652.32 The defendants argued that they were operating under the “commission of a foreign state” and as such could not violate § 1652. The court disagreed. It first decided that four of the crew members – “Baker, Howard, Passalaigue, and Harleston” – were citizens of the United States.33 The court then determined the issue of the Confederate States of America to be resolved as the executive and legislative branch of the U.S. government had not recognized the Confederate States as a foreign nation.34 It determined the issue of the Confederate States to be a political question and that until the executive or legislative branch had recognized statehood for the rebellious states then the court could not treat them as such.35 The jury was unable to come to a verdict and was discharged.36 Based on the questions presented to the judge from the venire, it appears the major issues arose around whether or not the Confederate States had been recognized as a foreign power and the intent element of robbery.37 Other acts that Congress defined as acts of piracy include: foreigners engaging in acts of war on the United States, or engaged in operations against U.S. citizens or property, if those acts are contrary to treaties in effect

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between the United States and the foreigner’s state of residence;38 any U.S. citizen investing in a piratical enterprise;39 violence against a vessel’s commander by a “seaman;”40 a ship’s captain or her officers are determined to be pirates if they “piratically or feloniously” take their vessel;41 if a person attempts to get a captain or any other crew member to take the vessel, cargo, “or to turn pirate” that person may be punished by up to three years of imprisonment;42 or anyone who uses an amphibious landing from a vessel and thereafter attacks a town.43

the prosecution of piracy found in both the Convention on the High Seas and the United Nations Convention on the Law.45 The Convention on the High Seas requires treaty members to cooperate in combating piracy “on the high seas or in any other place outside the jurisdiction of any State.”46 Under the convention, piracy has been defined by describing a series of acts listed under article 15. The United Nations Convention on Law of the Sea contains the exact same language in defining acts of piracy.47 These acts are as follows:

20th Century International Treaties Narrow the Definition of Pirate

(1) Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed:

Thanks to Congress’s vague definition of piracy, problems arise with defining the term pirate when new international treaties arise providing a new “law of nations.” In 1932, a group of scholars and students met at Harvard College and prepared a draft convention for the regulation of piracy.44 The draft convention would eventually give birth to the language governing

James J. Woodruff II is an Associate Professor of Lawyering Process at Florida Coastal School of Law. During his career as a practicing lawyer he handled cases arising under admiralty law. He holds a B.S. in Maritime Administration from Texas A&M University and a J.D. from South Texas College of Law. This article is a modified section taken from The Prosecution of Piracy Under the Offenses Clause, 2011 CARDOZO LAW REVIEW DE NOVO ___. Johnny Depp portrays the rascal Jack Sparrow in Disney’s The Pirates of the Caribbean. He is a cunning adversary who gives the outward appearance of a flamboyant drunk. He leads his companions on many adventures, frequently using highly improvised methods to escape from certain doom. 1

Captain Blood was a popular character portrayed most recently by Errol Flynn in a 1935 film. Capt. Blood is a physician who is wrongfully convicted and sentenced to a life of slavery in the Caribbean. He escapes the chains of slavery and begins a piracy career. Toward the end of the film Capt. Blood receives a pardon and commission in the Royal Navy from King William of Orange. This leads him to defend the colony under attack, and he is made governor after successfully defeating


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(a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; (2) Any act of voluntary participation in the operation of a

Id. at 154-55.

the colony’s French aggressor.


Robert Louis Stevenson made famous Long John Silver, the sea cook with a missing leg. Silver had a constant companion in Captain Flint, his pet parrot. Robert Stevenson, Treasure Island, (the Macmillian Company 1922).


Id. at 156-57.


Id. at 157.






Captain Hook has been a villain to children ever since his introduction by J. M. Barrie in his children’s story, Peter and Wendy, more popularly known as Peter Pan, hit the stands. J. M Barrie, Peter and Wendy, (Charles Scribner’s Sons 1912). Reference is even made to Long John Silver in Peter and Wendy. Id. at 168, a testament to the power the image of Long John Silver has in defining the popular image of pirates in literature. U.S. CONST. art. I, § 8, Cl. 10.


18 U.S.C. § 1651 (2006).


See generally, United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]; United Nations Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312 , 450 U.N.T.S. 82 [hereinafter High Seas Convention]. 5


U.S. v. Smith, 18 U.S. 153 (1820).


Id. at 154.






U.S. CONST. art. III, § 3.


Smith, 18 U.S. at 157.


for “seizing and running away with” the Quedash, a merchant ship. Id. Lord Chief Baron Ward instructed the jury as to the definition of piracy as “seizing and taking this ship and the goods in it piratically and feloniously.” Id. If the crew had engaged in such conduct and did not have a “French Pass, then it is piracy . . .” Id. Capt. Kidd and his crew were convicted and sentenced to death.







Id. at 158.


Id. at 162.

Id. at 163 n.h. This footnote compiles a great number of sources in a number of languages. A reoccurring theme appears to be that piracy must occur at sea and lack the authority of “prince or state” Id. (citing Woodeson). Lord Coke is quoted as defining “pirate” meaning á rover and “robber upon the sea.” Id. (citing Coke (3 Inst. 113. Co. Litt. 391). So at its core, piracy is a robbery occurring on the sea lacking any state authority. 21

Murder falling within the definition of piracy is discussed using the case against Capt. Kidd. Id. William Kidd was tried for the murder of W. Moore on the Adventure Galley while on the high seas near Malabar. Id. His crew was tried

Id. at 161.

Id. at 161-62. The opinion also describes that the crime of piracy was a civil law offence confined to the admiralty courts prior to the statute of 28th of Henry VIII. This illustrates English thought regarding piracy prior to Henry VIII. This treatment of piracy in a civil manner was possibly known by some members of the constitutional convention and taken into consideration when debating the offense clause. 24

Id. at 162.




Id. at 182.




Id. at 183.

United States v. Baker, 5 Blatchf. 6, 24 F.Cas. 962 (S.D.N.Y. 1861). 29


Id. at 964.


Id. at 962. The full statement of the

ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft;

Blood are pirates. The mutinous crew of the HMS Bounty would fall under the definition of pirates. Those, however, who hijack a nonU.S.-flagged ship, but do not intend to attack another vessel, aircraft, or town, are not pirates under the current “law of nations.”50

(3) Any act of inciting or of intentionally facilitating an act described in subparagraph 1 or subparagraph 2 of this article.48 The Convention also states that if a government-owned vessel or aircraft is taken by a mutinous crew it will be 49 treated as a private vessel and subject to article 15.

Conclusion At present, it appears that in order to fall within the international definition of “pirate” you must be a private individual using a vessel or aircraft to attack another vessel or aircraft with the intent to engage in violence, robbery, or detention of the vessel. Mutineers on vessels also achieve the rank of pirate. Anyone funding the pirate’s enterprise or facilitating the pirate is also a pirate. Of course, under the United States Code, those who attack U.S.-flagged shipping or towns falling under the jurisdiction of the United States also fall within the definition. Now having a working definition, we can definitely say that Jack Sparrow and Capt.

commission as given by the court is as follows: Jefferson Davis, President of the Confederate States of America, to All Who Shall See These PresentsGreeting: Know ye, that by virtue of the power vested in me by law, I have commissioned, and do hereby commission, the schooner or vessel called the Savannah, (more particularly described in the schedule hereunto annexed,) whereof T. Harrison Baker is commander, to act as a private armed vessel in the service of the Confederate States, on the high seas, against the United States of America their ships, vessels, goods and effects, and those of their citizens, during the pendency of the war now existing between the said Confederate States and the said United States. This commission to continue in force until revoked by the president of the Confederate States for the time being. Given under my hand and the seal of the Confederate States, at Montgomery, this eighteenth day of May, A. D. 1861. (L. S.) Jefferson Davis. By the President. R. Toombs, Secretary of State. Schedule of description of the vessel: Name-schooner Savannah. Tonnage-fifty-three 41/95 tons. Armament-one large pivot gun and small arms. No. of crew-thirty.

Id. at 964. The language of both sections 1651 and 1652 is the same as the predecessor statutes. I have chosen to keep the current numbering in the discussion in order to avoid confusion. 32

33 34 35 36

Id. Id. at 965-66. Id. Id. at 967.

Id. at 966. The jury asked two questions. The first was “whether, if the jury believed that civil war existed, and had been so recognized by the act of our government, or if the jury believed that the intent to commit a robbery did not exist in the minds of the prisoners at the time, it may influence their verdict.” Id. The second was that it was “understood you honor to charge that there must be an intent to take the property of another for your own use.” Id. 37

These questions illustrate the problems with prosecution under § 1652 when the nation is fighting a state or territory that has seceded. To clear up any citizenship issues, the members of the Savannah’s crew should have individually revoked their U.S. citizenship prior to engaging in their actions as privateers. Such revocation may lead to other legal ramifications, but for the purposes of §

1652, it would clearly remove them from falling thereunder. 38

18 U.S.C. § 1653 (2006).


18 U.S.C. § 1654 (2004).


18 U.S.C. § 1655 (2006).


18 U.S.C. § 1656 (2006).


18 U.S.C. § 1657 (2006).


18 U.S.C. § 1661 (2006).

Pirates have been known to engage in amphibious landings to assault and sack land-based towns. One of the most daring on record is Captain Morgan’s sacking of Panama. See generally, Peter Earl, The Sack of Panama: Captain Morgan and the Battle for the Caribbean, St. Martin’s Press (1981). 43

See generally Harvard Research draft convention, 26 AM. J. INT’L L. SUP 739 (1932). The draft convention created a proposed code to govern piracy. Much of that code eventually became law under the United Nations Convention on the Law of the Seas. 44

Article 3 covers the definition of piracy in the convention. The extensive comments to that article provided shed light on the disagreements that arose in creating a definition of piracy and the appropriate legal methods for its punishment. The comments to article

3 state that creating a definition for piracy was the most difficult issue that faced the convention. Id. at 769. The comment reflects that the definition they had created did not touch upon “many practical and technical problems in the field of piracy ...” Id. The comments to article 3 comprise 53 pages. I will not be discussing the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) as that convention does not use the term “pirate” to define a person who violates the convention. 45

High Seas Convention, supra note 6, at art. 14. 46


UNCLOS, supra note 6, art. 101.


High Seas at art. 15.


Id. at art. 16.

Those individuals would not be pirates by definition, but can face prosecution under the SUA. See International Maritime Organization: International Maritime Organization: Convention and Protocol from the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, IMO Do. SUA/CON/15 (1988), reprinted in 27 I.L.M. 668 (1988). 50

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DEBATING INDEPENDENCE VERSUS ACCOUNTABILITY IN JUDICIAL SYSTEMS We generally think of a legal system as something that develops over time, even centuries; a mixture of laws, rulings, interpretations, practices and procedures growing “organically” with many different influences. Often, though, events bring about change at a much faster pace, compressing the time frame of “what was” and “what is to be.” It is in these situations that an expert, such as Associate Professor of Law David Pimentel, is called upon for guidance. Regular readers of Coastal Law Magazine will already be familiar with Pimentel; two stories in our Winter 2011 issue detailed his Fulbright Scholarship work in Bosnia and his prolific output of papers, presentations and speaking engagements. Through his professional experience and academic research, Pimentel has developed an expertise in the reform and restructure of judicial systems, especially in developing and post-conflict societies. Pimentel, with both his J.D. and a master’s degree in economics from Berkeley, has more than 10 years’ experience working inside U.S. federal courts, trial courts, appellate courts, the Administrative Office of the U.S. Courts and as a Supreme Court Fellow. He spent four years in The Hague as the Chief of Court Management at the United Nations’ International Criminal Tribunal for the former Yugoslavia. He also headed the rule of law efforts in Southern Sudan for the United Nations mission, and has led court reform projects in Bosnia and Romania. A Coastal Law faculty member since 2007, Pimentel teaches Comparative Law and a seminar on International Rule of Law, among other courses. Most recently, first at the request of The Brigham Young University (BYU) Institute on Law and Religion, and later on behalf of the American Bar Association (ABA) Rule of Law Initiative, Pimentel has been consulting in Nepal on the judiciary provisions for that country’s new constitution. A nation of over 29 million people wedged between China and India, the Nepal of 2011 certainly qualifies as a post-conflict society. The country is attempting to set up a secular democracy after more than 200 years as


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a Hindu monarchy, a failed first constitution from 1990, and a decade-long civil insurgency. Pimentel said, “The constitutional negotiations in Nepal are bringing to light deep ideological divides among the different parties, and the structure of a new judicial branch has not been exempted from the debate.” Breaking from other outside experts who preach a standard “international best practice” for a judicial structure, Pimentel is reframing the debate in terms of analyzing the proper balance of independence and accountability in a judicial system in light of a country’s specific history and culture. For Pimentel, that balance of independence and accountability is correlated, respectively, to what he calls a judiciary’s courage and integrity. The reframed argument begins with the fact that every country, whether established, developing or in a post-conflict stage, has an inherent issue when addressing the power of its judicial branch—the tension created when trying to strike a balance between independence and accountability. “The reason for judicial independence, for insulating judges against outside influence through institutional safeguards (such as life tenure), is to ensure that they can make the courageous decisions that protect the minority from the tyranny of the majority,” said Pimentel. Free from the fear of reprisal and beholden to no one or no institution except for the law itself, an independent judiciary can make decisions

that, while unpopular, are correct under the law. An example is the pro-civil rights rulings in the South in the 1960s. For Pimentel, if judges won’t stand up for the unpopular minority, there can be no justice in the society. Yet, while institutional safeguards promote judicial courage, they are merely vehicles. The true goal is to have judges with the internal courage to do the right thing. However, we desire that the judiciary, as a branch of government, be accountable to the citizens—that there are repercussions for unwanted actions. A simple example would be the ability to remove a judge for accepting bribes.

“Accountability is about keeping judges honest, that they don’t lapse into corruption or pursue their own agendas,” said Pimentel. “This is demanding integrity from judges.” Matching independence with courage and accountability with integrity, Pimentel has developed a unique graphic representation to illustrate the relationships. Along the x axis, low to high, is courage, while along the y axis, low to high, is integrity. Pimentel then delineates four quadrants within this graph and populates it with the type of judges / judiciary that are created by the characteristics therein. Any judge in any system falls into one of the four quadrants. SEE GRAPH NEXT PAGE

Illustration by Heather Blanton Those in the lower left quadrant—low courage and low integrity—Pimentel calls the “corruptible.” They do not stand on principle. These judges are easily influenced and swayed, whether by bribery, fear of reprisal or just prevailing public opinion. The upper left quadrant—low courage but high integrity—Pimentel labels “good intentions.”

These judges want to do the right thing under the law, but can be intimidated or lack the conviction to follow through. The upper right quadrant—high integrity and high courage—is reserved for “heroes,” those judges that do what is right regardless of the ramifications to them. (See News & Events article on Charlie Swift in this issue). These are

the judges we would all want to have. Pimentel said, “Judicial heroes act with courage regardless of the institutional safeguards for independence, and do not need the institutional mechanisms that promote integrity, because they are already possess this trait.”

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For Pimentel, the remaining lower right quadrant represents the worst possible combination—low integrity and high courage. These are the “monsters,” ready to carry out their own self-serving agenda regardless of potential consequences. Impeachment, dismissal, possible fines or imprisonment, they don’t care—they are in it for themselves. In his research and his consulting work with countries that are struggling with constitutions and, within that, establishing or reformulating their judiciaries, Pimentel has noted the unintended, if not disastrous, consequences of not understanding these relationships in the context of a country’s culture and history. Nepal’s first foray into a constitutional monarchy in 1990, after centuries of autocratic Hindu

With its 200-year-old Hindu monarchy swept away, Nepal is still struggling to establish a secular, multi-party democratic republic. A special legislative body called the Constituent Assembly was elected in 2008 with a selfimposed deadline of May 2010 to draft a new constitution. As May 2010 came and went, this deadline was extended to May 2011, and, at the time of this writing, extended a further three months. Structuring the judiciary is of course a main part of the constitutional negotiations. While many outside voices are calling for an independent Nepali judiciary as part of “international best practices,” this independence idea, even just in terminology, is striking a sour note with the Maoists and other factions in the debate. The last thing they want is a re-creation of the “monsters” of the 1990s.

Exceptions may be plentiful, but most would agree that judicial independence and integrity are highly present and expected here in the U.S. rule, provides a clear example. Pimentel was not associated with Nepal at that time, but relates how Nepal never had a tradition of an independent judiciary. What judiciary that had existed had always been subject (accountable) to the power of the king. The 1990 constitution, while protecting the power of the king, also structured a judiciary that by all appearances was separate and independent. The problem created was that, without a history of judicial integrity, and rushing to promote independence over accountability, this new judiciary became terribly corrupt in both public perception and practice. Using the graph as the guide, increasing judicial independence should be a good thing—it should push the “good intentions” into the “heroes” quadrant. What happened in 1990s era Nepal, however, was that the new judicial independence, without the history of judicial integrity or enough institutional mechanisms for promoting integrity, affected only the lower half of the graph, and allowed “corruptible” to become “monsters.” Nepal is still paying the price for this today. Fueled by dissatisfaction with the 1990 constitution (and the judiciary it created), a bloody, Maoist-led civil insurgency finally ended in 2006 when they agreed to stop fighting and become part of a new political process.


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This is contributing to the constitutional gridlock and missed deadlines. Thus, in papers and presentations, Pimentel is challenging what he calls the “one-size-fits-all” concept of judicial independence, and believes many rule-of-law reformers are missing this bigger cultural picture. When a society has no tradition, no culture, no expectation of judicial integrity, the worst thing that can happen is judicial independence. Pimentel stresses that in these situations judicial accountability has to be addressed first. Institutional mechanisms for this would include review boards, oversight committees, easier methods of removal, strict penalties and other means to let judges know that they have to “keep their noses clean” and do what is correct. Again using the graph as a guide, increasing accountability should push “corruptible” into the “good intentions” quadrant. These judges realize which way the system is moving, and they will change to remain part of it. This is a good step in the right direction. Therefore, in these cultural situations, the trajectory of change for Pimentel is clockwise, starting in the lower left quadrant. Through accountability first, integrity can be promoted and “corruptible” can be moved to “good

intentions.” Only after that can independence be introduced and those with “good intentions” become “heroes.” Of course it’s not as black-and-white as all accountability and all independence; the point is to strike the correct balance in an ongoing process given the culture. Eventually, the ultimate ideal is to have “heroes” in a society where institutional safeguards for independence and institutional mechanisms for integrity are not as necessary, because the good traits of independence and integrity are ingrained in everyone. Exceptions may be plentiful, but most would agree that judicial independence and integrity are highly present and expected here in the U.S. For Nepal, Pimentel believes it could take two generations for that attitude to prevail. But, what about the “monsters?” Safeguards for independence don’t matter to them; they already have the courage to do what they want. Accountability initiatives don’t faze them; their low integrity makes them completely self-centered.

“‘Monsters’ can’t be moved in the graph—so they have to be moved out,” said Pimentel. Pimentel served as a consultant on projects to reform and restructure the court system in post-war Bosnia. He relates how they literally fired every judge in the entire country, and immediately started a recruitment campaign to find new judicial appointees. All fired judges were asked—in fact encouraged— to apply for positions in the newly reformed system. Given this ability to mass review, about 70 percent of the previous judges were reappointed. The others, those with the worst ethical records, were able to be weeded out. For Nepal, Pimentel believes that its specific situation, at this time, calls for constitutional provisions that emphasize judicial accountability over judicial independence. With a culture of judicial corruption, Pimentel feels that too much judicial independence could do more harm than good. He is recommending that a “Constitutional Court,” separate from the other branches of government (including the Nepali Supreme Court), be given the power of judicial review. This Constitutional Court would, at minimum, be a watchdog to steer the “corruptible” up the ladder as the country develops its own internal expectation of integrity.

in practice

The Separation of Powers and Addressing the ‘Salad’ Class of ’99 alumnus talks this and more from the West Bank Illustration by Karen Kurycki

One needs to look no further than the Palestinian Territories to see how a governing body and its people deal on a day-to-day basis with a mixture of international and local laws. Throughout its history, Palestine has been subject to many different legal systems because of the many different ruling authorities. Ottoman, British, Jordanian and Egyptian laws, Israeli military orders, and “Urf” (local customs and practices) still influence and affect the current legal system and structure. One commentator opined that: “The Palestinian legal system can be compared to a tossed salad, with layers of different laws and systems all mixed up into a confused mess…” Practicing in the middle of all this is Kosty M. Ziadeh, of the Ziadeh Law Office in Ramallah, West Bank. Known as “Gus” to friends and faculty, Ziadeh was a member of the charter and first graduating class of Florida Coastal School of Law in 1999. “Attending Florida Coastal School of Law was one of the best decisions that I ever made,” said Ziadeh. “The school started with a unique vision of responsibility to the legal profession and its students. Back then I had no doubt the school would become something special among law schools nationwide and internationally.” After about 10 years in Northeast Florida, where he received his high school, undergraduate and law school degrees, Ziadeh returned to Ramallah to join his father’s law office. A younger brother was subsequently added, and today the three partners are the legal advisors to a wide range of companies, banks, hospitals, nongovernmental organizations and municipalities. The firm covers all areas of

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the Palestinian Civil Law, handling issues in corporate, contract, property, financial, tax and customs laws, in addition to agency, distribution, patent, labor and insurance law. “Much like Coastal Law’s philosophy, at our law office we strongly believe in alternative dispute resolution methods, mainly arbitration due to its regulated, efficient and more expedient path under Palestinian statute,” said Ziadeh. “When going to court we only accept high profile and sensitive cases with difficult legal issues, mainly at the last two stages in the litigation process, meaning only in front of the highest court in the Palestinian Territories.”

“Much like Coastal Law’s philosophy, at our law office we strongly believe in alternative dispute resolution methods, mainly arbitration due to its regulated, efficient and more expedient path under Palestinian statute...” In Ziadeh’s view, how is the “salad” of laws and systems being addressed? “As we know, in January of 1996 the Palestinian people took their first step toward democracy by participating in free elections, which led to the issuance of the Palestinian Basic Law and its amendments later on, and many other laws and statutes organizing the various aspects of Palestinian life,” he said. “The Basic Law tries to break away with past systems by providing for a bill of rights that is subject to judicial review by a Constitutional Court. Thus, a central function of the judicial branch is to ensure the separation of powers within the Palestinian society. Judicial review is the most effective weapon in the hands of the judiciary to protect the rights of the minority from assault by governmental officials. It is contributing significantly to the development of these laws and their application to the changing conditions within the Palestinian society, and to the elimination of the mixing up or confusion of these laws.” According to Ziadeh, despite the number or origin of the various laws in the “salad,” the good news is that the executive branch is


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committed to the principle of separation of powers and to the reform process. “Prime Minister Salam Fayyad is very serious about reform and is doing his best to build a new modern Palestinian state, a state of people and institutions, where the rule of law is the prominent theme,” said Ziadeh. “This will strengthen the Palestinian economy and will make it rise and grow on solid ground by attracting international investors and have it stop relying on foreign financial aid. This will be a step toward an independent Palestinian state among the 193 independent countries at the United Nations.”


Against this larger backdrop, technology is now also playing a role. The Palestinian Legal and Judicial System, “Al-Muqtafi,” is the first legal databank in Palestine, similar to Westlaw or LexisNexis. Over the last decade, legal researchers and IT programmers at the Institute of Law at Birzeit University (located on the outskirts of the West Bank town of Birzeit) have designed and developed the databank. To date, the system includes more than 50,000 pages of legislation over a period of 150 years of Palestinian history. It also includes full texts of 1,200 regulations published in the Palestinian Official Gazette and all Palestinian high court judgments since 1994. “‘Al-Muqtafi’ is greatly valued by me and my colleagues in the legal profession. It enables us to search the ‘salad’ in a more professional and efficient way to find the latest precedents,” said Ziadeh. “In addition, the Palestinian Bar Association and the Judicial High Council (composed of the highest-ranking judges from certain Palestinian courts) have developed and implemented an online service for the attorneys in Palestine to obtain the minutes of their current trial proceedings.” Yet, despite all the outside legal influences Palestine has dealt with in its history, more continue to come its way. The European Union, as well as the United States Agency for International Development (USAID), have been sponsoring and funding many “Rule of Law” initiatives in Palestine. Ziadeh said the Palestinian people and government are nothing short of grateful for the support. “These foreign initiatives offer the Palestinian people the democratic experiences of these generous and leading countries, experiences that are deeply rooted in their traditions, customs and cultures,” he said.

Providing pro bono student research services for public interest legal organizations The goal of the Public Interest Research Bureau is to provide student research and writing services to poverty law attorneys in an effort to make justice available to all. The service is provided at no cost to participating legal services programs in Florida, Georgia, South Carolina, Mississippi, and Alabama. If you are interested in using the Bureau’s services, email, call 904.256.1191 or visit


PROFESSOR HEIDI ANDERSON In March, Professor Anderson’s article, “The Mythical Right to Obscurity: A Pragmatic Defense of No Privacy in Public” was accepted for publication in the annual Privacy issue of the Journal of Law & Policy for the Information Society, a peer-reviewed journal affiliated with The Ohio State University’s Moritz College of Law. The article also was a Top 10 download on the SSRN eJournal for Information Privacy Law.

PROFESSORS KIRSTEN CLEMENT & KAREN MILLARD On December 3, Professors Kirsten Clement and Karen Millard presented at the LWI oneday workshop hosted by Stetson University College of Law. They presented on two topics: essential syllabus tips, and infusing professionalism in the classroom. Professor Clement was selected to present at the Second Annual Empire State Legal Writing Conference, which was held on May 13 at the Manhattan campus of St. John’s University. The title of her presentation was “Somewhere Over the Rainbow: Adapting Mary Beth Beazley’s Rainbow Editing Exercise to Teach Students to Become Editors.”

PROFESSOR ERICKA CURRAN In December, Professor Curran, Clinical Fellow Carlos Martin and the students of the Immigrant Rights Clinic increased efforts to provide representation to immigrants detained at the Baker County Detention Facility. The Immigrant Rights Clinic is working to support the work of Coastal grad Karen Winston, who is an equal justice works fellow at Jacksonville Area Legal Aid and has started the Baker Defense Project. The Baker County Detention facility can hold up to 500 detained immigrants.

PROFESSOR SUSAN DAICOFF In November, Professor Daicoff gave a talk titled “The Millennial Generation” at the

Convocation on Professionalism sponsored by the State Bar of Georgia in Atlanta. Her article, “On Butlers, Architects, and Lawyers: The Professionalism of ‘The Remains of the Day’ and of ‘The Fountainhead’” (examining two fictional characters’ models for the professional role of the attorney) was accepted for publication by the peer-reviewed Journal of Law, Business, and Ethics.

Law. Professor Donahoo presented on essential syllabus tips and conducted a roundtable lunch discussion on professionalism in and out of the classroom.

Her textbook on the vectors of the comprehensive law movement,Comprehensive Law Practice, was published in early spring 2011 by Carolina Academic Press.

Professor Durden recently published his ninth and tenth law review articles.

On March 24, Professor Daicoff gave a talk titled “Perspectives on Leadership Competencies” at the Santa Clara University Leadership Education Roundtable III: Leadership as a Fundamental Lawyering Skill.

PROFESSOR ELIZABETH DECOUX On May 20, Professor DeCoux spoke to the Animal Law Conference of the International Research Group in Animal Law (GRIDA), held on Parliament Hill in Ottawa, Canada. Her topic was the connection between the movement to abolish the property status of animals and other social justice movements.

PROFESSOR SCOTT DEVITO In January, Professor DeVito’s proposal for a presentation at the Legal Writing Institute 3rd Applied Legal Storytelling Conference was accepted, and he presented at the conference in July. The proposal is called “An Empirical Study of the Effect of Student Storytelling and Story Writing on Learning in Doctrinal Courses.”

PROFESSOR GINA DONAHOO On December 3, Professor Donahoo presented at the LWI one-day workshop hosted by St. John’s University College of

PROFESSOR STEPHEN DURDEN In December, Campbell Law Review published Professor Durden’s article, “Textualist Canons: Cabining Rules or Predilective Tools.”

PROFESSOR CLEVELAND FERGUSON III In October, Professor Ferguson was nominated by Mayor Peyton and confirmed by the Jacksonville City Council to serve as a commissioner on the Jacksonville Economic Development Commission (JEDC). The JEDC is a quasi-independent commission that serves as the city’s community redevelopment agency and its industrial development authority. The JEDC aims to develop and execute policies that result in sustainable job growth, rising personal incomes and a broader tax base, including supporting events related to sports, motion picture and television development. His term expires in 2012.

PROFESSOR BRIAN FOLEY In January, Professor Foley was asked by Themis Bar Review to teach Florida Evidence Distinctions in a recorded lecture. The lecture was recorded in February. Professor Foley was a co-organizer of the 3rd Applied Legal Storytelling Conference, which was held in July at the University of Denver School of Law. Professor Foley and the rest of the organizers finished selecting papers from among the many proposals in January. The conference had more than 60 presentations, including one by Professor Scott DeVito. On February 10-13, Professor Foley, along with Professor Chris Roederer, coached Coastal’s team in the Philip C. Jessup International Law Moot Court Competition, South SuperRegionals, at the University of Houston Law

Coastal Law Magazine | Fall 2011


PROFESSOR ANDREW LONG In September, Professor Long’s article, “Global Climate Governance to Enhance Biodiversity & Well-Being: Integrating Non-State Networks and Public International Law in Tropical Forests,” was accepted for publication in Environmental Law (Lewis & Clark Law School). The article advances a novel public-private governance approach to simultaneously incentivizing reduction of greenhouse gas emissions, biodiversity preservation, and human well-being in tropical forests. In so doing, the article also offers an innovative and generalizable model for combining private market finance, non-state certification, and public funding to increase the coherence and effectiveness of global environmental regulation. Professor Long also delivered a plenary presentation to an audience of approximately 100 distinguished academics from around the globe at the 8th IUCN Academy of Environmental Law Colloquium in September in Ghent, Belgium. Long’s comments emphasized the importance of designing international regulatory programs to beneficially affect multiple issue areas. Later in the colloquium, he provided a panel presentation on the development of a climate regime program to reduce greenhouse gas emissions from tropical deforestation. In addition, Professor Long presented his research at Yale Law School during the Yale/UNITAR Conference on Environmental Governance and Democracy. Also in October, Professor Long presented his research as a part of the Colloquium on Environmental Scholarship held at Vermont Law School. He discussed his research project into opportunities for “linkage-based international environmental law.” At the end of December, Professor Long’s article, “Global Climate Governance to Enhance Biodiversity & Well-Being: Integrating Non-State Networks and Public International Law in Tropical Forests,” was the single most downloaded recent article in SSRN’s Environmental & Natural Resources Law eJournals. It was the seventh most downloaded recent article in SSRN’s entire Legal Scholarship Network. Recent articles are those posted to SSRN within the past 60 days. As of December 30, Professor Long’s article had been downloaded 499 times. On March 5, Professor Long presented his research at the 2nd Annual Meeting of the Association for Law, Property and Society held at Georgetown University Law Center. His presentation addressed property law aspects of creating marketable carbon credits in forests and other landscapes. Also in March, Professor Long was asked to provide expert review and commentary in regard to a program for awarding more than $50 million in grants for projects that aim to alleviate poverty through protection of ecosystem services. In addition, Professor Long was invited to participate in an expert meeting held by several United Nations institutions concerning the development of guidelines for governance of forest carbon projects.


Coastal Law Magazine | Fall 2011

Center. Going into the elimination rounds, Coastal’s team was ranked second out of the 21 teams, but unfortunately the team was eliminated in the quarter finals. Coastal’s two oral advocates, Jeff Brown and Michael Flores, were ranked seventh and eighth respectively, out of all of the oralists.

PROFESSOR SUSAN HARTHILL In September, Professor Harthill was certified by the Florida Supreme Court as a Florida CircuitCivil Mediator. In November, Professor Harthill’s article, “The Need for a Revitalized Regulatory Scheme to Address Workplace Bullying in the United States: Harnessing the Federal Occupational Safety and Health Act,” was printed at 78 U. Cinn. L. Rev. 1250 (2010). In October, another article by Professor Harthill, “A Comparative Analysis of Workplace Bullying as an Occupational Safety and Health Concern,” was accepted for publication by the Hastings International and Comparative Law Review in Spring 2011. On March 10, Professor Susan Harthill moderated a Brown Bag Lunch & Information Exchange hosted by the Jacksonville Human Rights Commission, entitled “Strategies for Achieving Workplace Diversity.” The panelists included: Lois Cooper, vice president of Corporate Social Responsibility & Inclusion at Adeeco; Nancy Moredock, director of Employment/Employee Relations at Mayo Clinic; and Susan Hamilton, vice president of Diversity at CSX Transportation. The panelists talked about the need to have senior leadership support for achieving workplace diversity and the necessity to develop a “business case” for diversity.

PROFESSOR CAROLYN HERMAN On April 27 in Miami Beach, Professor Herman spoke at the 2nd Annual International Symposium on the World of Music, Film, Television and Sports sponsored by the American Bar Association Forum on the Entertainment and Sport Industries. Her topic was “Internet Music Madness: Guerilla Marketing and Monetization in a Digital World,” where she discussed the new income streams created by intellectual property ownership in the digital age along with the legal issues surrounding their use and acquisition. Professor Herman also provided a short paper as part of the course materials which summarized her findings. In May, Professor Herman was re-elected for a two-year term to the Executive Council of the Entertainment, Arts, and Sports Law Section of the Florida Bar.

PROFESSOR THOMAS HORNSBY On February 25, Professor Hornsby spoke to the St. Johns County Bar Association on the topic of “Florida Alimony Update.” The St. Johns County Bar President is Undine Pawlowski of the Anastasia Law, PL, and the secretary is Erin Rohan, both Coastal Law graduates. Professor Hornsby’s article, “The American Bar Association (ABA) 2007 Model Code of Judicial Conduct: What Does it Mean to Juvenile and Family Court Judges?” was published in the National Council of Juvenile and Family Court Judges’ Juvenile & Family Court Journal, Vol. 62, no. 1 Winter 2011 Edition.

On April 3, Professor Hornsby was the plenary session speaker and panelist at the Best Practices in Child Custody session at a conference at Florida State University sponsored by The National Organization for Men Against Sexism (NOMAS) and Men Advocating Responsible Conduct (MARC). Co-sponsors for the conference were Sexual Violence Task Force of Tampa Bay, Feminist Women’s Health Center, SATF (Oregon Attorney General’s Sexual Assault Task Force), Equality Florida, Equal Rights Alliance, VCS Community Change Project, Florida Coalition Against Sexual Violence and Florida State University. The topic presented was “Domestic Violence Issues and Solutions.”

PROFESSOR RICK KARCHER In March, Professor Karcher participated on a panel at Harvard Law School discussing the merits and potential impact of O’Bannon v. NCAA and Keller v. EA Sports, which attack the NCAA’s licensing practices as violations of antitrust laws and the players’ rights of publicity, and Agnew v. NCAA, which challenges the NCAA’s 37-year-old practice of giving only oneyear scholarships. In April, Professor Karcher participated on a panel at Fordham Law School titled, “Agents, Amateurism and Accountability: Legal Questions Arising from the Relationships between Amateur Athletes and Lawyer/Agents Seeking to Represent Them.” On May 20, Professor Karcher spoke on a panel at the Sports Lawyers Association 37th Annual Conference discussing legal ethics issues arising from the dual representation of players, coaches and professional team/ university management.

PROFESSOR JOHN KNECHTLE Professor Knechtle is a co-author of Constitutional Law, Cases, Materials and Problems, 2nd Ed., published in March by Aspen, which is a division of Wolters Kluwer. In March, Professor Knechtle gave a talk at the University of Louisville Louis D. Brandeis School of Law titled “The Impact of the Internet on Politics.” Also in March, Professor Knechtle was one of the Charleston Law Review Symposium speakers and delivered a talk titled “Wiki Leaks and National Security.”

Ohio State University Law School titled “Why the UN’s Efforts to Prohibit the Defamation of Religion are Misguided.” Again in May, Professor Knechtle delivered a paper at the University of St. Louis Law School titled “When Can the U.S. Invade Another Country Under International Law? Does it Matter?”

PROFESSOR DARREN LATHAM In October, Professor Latham was appointed to the Executive Council of the Florida Bar’s International Law Section and was also asked to co-chair the section’s Faculty Council. At the fall section meetings, Professor Latham and the Faculty Council developed plans to enhance interaction and collaboration AMONG the attorneys of the section practicing various types of international and transnational law and the Florida law schools, including both student and faculty rights and technology transfer in international climate-change governance.

PROFESSOR MARC MCALLISTER In late March 2011, Professor McAllister’s law review article, “Dicta Redefined,” was published. This article argues that judges deliberately use dicta to influence issues not yet before the court, and further contends that not all dicta should be treated the same. Rather, lawyers should differentiate between three pragmatic categories of dicta: “vibrant dicta,” “dead dicta,” and “divergent dicta.” Using case examples, this article explores the likelihood that a statement made in dicta will be accepted as law, and identifies five factors that help determine the future of a particular dictum. Interested readers can access the article at 47 Willamette L. Rev. 161 (2011). On March 24, Professor McAllister’s recent article, “The Disguised Witness and Crawford’s Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court’s Confrontation Jurisprudence,” 58 Drake L. Rev. 481 (2010), received a favorable review from Evidence Prof Blog Editor, Professor Colin Miller. You can access Professor Miller’s review at

PROFESSOR JANA MCCREARY On November 13, Professor McCreary presented her workin-progress, “Cruel and Unusual: How the Bridge between Atkins and McDonald Presents the Need to Proactively Prevent the Crime when Punishment is Unjust” at the 4th Annual Florida Legal Scholarship Forum at Stetson University College of Law in St. Petersburg, Florida. In this work, Professor McCreary weaves criminal law, mental disability law, and gun law, tying the 2002 Supreme Court case holding that execution of persons with mental retardation is a violation of the Eighth Amendment with the recent Supreme Court case applying the Second Amendment to the states. In May, Professor McCreary’s previous article, “Tell Me No Secrets: Sharing, Discipline, and the Clash of Ecclesiastical Abstention and Psychotherapeutic Confidentiality,” was published and appears in the Quinnipiac Law Review’s May 27, 2011, edition at 29 Quinnipiac L. Rev. 77. PROFESSOR KAREN MILLARD On February 3, The Family Nurturing Center of Florida presented Professor Karen Millard with The Reverend H. Marshall Lowell Community Service Award for her outstanding contributions through the Florida Coastal School of Law Pro Bono Program. PROFESSOR ALEXANDER MOODY In April, Professor Sander Moody presented on criminal appellate practice at the annual meeting of the Florida Association of Criminal Defense Lawyers in Tampa. In May, Professor Moody presented at the Annual Raymond Ehrlich Trial Advocacy Seminar presented by the Jacksonville Bar Association at EverBank Field. Professor Moody’s presentation discussed recent federal court developments regarding the law of evidence and electronically stored information (ESI).

In May, Professor Knechtle delivered a paper at

Coastal Law Magazine | Fall 2011


PROFESSOR GERALD MORAN In September 2010, Professor Moran’s book, John Chipman Gray: The Harvard Brahman of Property Law, Carolina Academic Press, was published.

PROFESSOR GREGORY PINGREE On December 14, Professor Pingree led a workshop on “Sexual Orientation, Transgender Identity, and Gender Expression” for the Jacksonville Human Rights Commission. The JHRC asked him to lead the workshop as part of their ongoing deliberation about how to amend the Jacksonville Human Rights Ordinance to provide appropriate civil rights protection for sexual minorities.

PROFESSOR DAVID PIMENTEL In October, Professor Pimentel’s article, “Legal Pluralism in Post-colonial Africa: Linking Customary and Statutory Adjudication in Mozambique” was accepted for publication, and will appear in the 2011 issue of the Yale Human Rights and Development Law Journal. This article, just posted in August, already appears on SSRN’s list of “top-ten” downloads in the area of indigenous justice. Professor Pimentel also completed a new article based on his recent consulting experience (with the ABA Rule of Law Initiative) in Kathmandu, entitled “Judicial Independence at the Crossroads: Grappling with Ideology and History in the New Nepali Constitution.” It was accepted for simultaneous publication in two hemispheres: in the Indian Journal of Constitutional Law (in Hyderabad, India), and the Indiana International and Comparative Law Review (in Indianapolis). Professor Pimentel gave a guest lecture on legal pluralism and comparative legal traditions on October 20, 2010, at the Faculty of Economics and Business at the University of Sarajevo. On November 15-17, Professor Pimentel went to Montenegro, the second newest country in the world (after Kosovo, which, like Montenegro, broke off from Serbia), to speak to ministry and other government officials about how to approach the restructuring and rationalization of their court system. He gave a presentation in the Adriatic seacoast town of Budva, offering advice for the Montenegran judiciary based on his experience leading the project to restructure the Bosnian judiciary in 2002. Professor Pimentel also gave a guest lecture on December 23 on “legal pluralism” at Sarajevo’s Druga Gimnazija, Bosnia’s premier secondary school, where his 16-year-old daughter Emma Lucy is enrolled this year. In April, Professor Pimentel’s article on judicial discipline in the federal courts—“The Reluctant Tattle-tale: Closing the Gap in Federal Judicial Discipline,” 76 Tenn. L. Rev. 909 (2009)—prompted the United States Judicial Conference Committee with responsibility for judicial misconduct to re-examine its procedures. Former Chief Judge John M. Walker, Jr. (2nd Cir.), who chairs the committee, wrote to Professor Pimentel to advise him that he had circulated the article to his committee members and placed it on the agenda for consideration at their next meeting.


Coastal Law Magazine | Fall 2011

PROFESSOR LUCILLE PONTE On April 1-2, Professor Ponte presented “Digital Natives in Business Law Courses: How to Incorporate Distance Education Techniques into Traditional Face-to-Face Classes” at the North Atlantic Regional Business Law Association (NARBLA) Annual Conference at Bentley University. She also reviewed scholarly papers as a member of NARBLA’s editorial board for the Business Law Review (peer-review journal). In addition, she participated in the Executive Board meeting at Boston College to set policies for the upcoming year. On April 7, Professor Ponte gave an educational talk on “The ABCs of Copyright” to members of the First Coast Christian Writers, a local chapter of the Florida Writers Association, at the Wesconnett Library.

In April, Professor Pimentel’s article in the Harvard International Review from last summer, “Legal Pluralism and the Rule of Law: Can Indigenous Justice Survive?” 32(2) Harv. Int’l Rev. 32 (2010), inspired Professor Douglas Lind, chair of the Philosophy Department at the University of Idago and an expert on indigenous justice, to publish a commentary. Professor Lind characterized Professor Pimentel’s piece as “a trenchant account of the challenges of legal pluralism,” and echoes its main points: “Pimentel correctly observes that accommodating the co-existence of indigenous and Western concepts of justice in post-colonial settings leads frequently to cultural conflict--for example, when indigenous traditions and values affront Western concepts of the rule of law or human rights. He further rightly notes that the burden of rectifying such conflicts typically goes only one way. Indigenous justice must adapt to survive.” In April and May, Professor Pimentel had several speaking engagements in diverse places: ·University of Tuzla, “Comparative Legal Culture and the Role of the Judiciary – Lessons for Rule of Law Reform” Tuzla, Bosnia and Herzegovina (April 6) ·G.P.K. Centre for Democracy, Peace & Development, Tribhuvan University, and the Nepal Bar Association, “The Emerging New Constitution in Nepal,” Kathmandu, Nepal (May 6-7), he chaired panels and made presentations on “Judicial Independence in the New Nepali Constitution,” “Rule of Law in Post-Conflict Nepal,” and “Property Rights Under the New Constitution” ·Amity University, Institute for Advanced Legal Studies, “Religion and Governance in a Secular State,” New Delhi, India (May 9), he chaired the panel on Judicial Independence and made presentation on “Rethinking the Tension between Judicial Independence and Accountability: the Role of Court Structure” ·International Congress on Constitutional Law, Istanbul, Turkey (May 12), he chaired the panel on “The Rule of Law, Judicial Reform, Independence and Impartiality of the Judiciary”; presented paper on “Judicial Governance: Independence and Accountability as a Product of Constitutional Structure” ·Constitutional Complaint International Symposium, “Individual Application to the Constitutional Court in Other Countries,” Hukuk Adamları Birligi (Turkish Judges’ Union), Ankara, Turkey (May 13) In early May, he also visited Hong Kong University and met with the dean and the director for the Center for Comparative and Public Law.

PROFESSOR LOIS RAGSDALE In December, Professor Ragsdale was appointed to the Board of Jacksonville Area Legal Aid, Inc., effective January 2011. PROFESSOR BENJAMIN RAJOTTE Professor Rajotte co-authored an article with a researcher from the Centers for Disease Control and Prevention that was accepted in October for publication. It is “Health in All Policies: Addressing the Legal and Policy Foundations of Health Impact Assessments,” and it was published in the Spring 2011 Journal of Law, Medicine & Ethics. In February, Professor Rajotte was cited on PROFESSOR CHRISTOPHER ROEDERER Professor Roederer’s new book, Florida Statutory Interpretation (2010), is in print as of December 2010. PROFESSOR BRAD SHANNON In May, Professor Shannon’s article, “I Have Federal Pleading All Figured Out,” was published at 61 Case Western Reserve L. Rev. 453 (2011). PROFESSOR DAVID SIMON In April, Professor Simon was an invited guest at the LexisNexis Legal Research and Writing Summit in Phoenix, Arizona. The Summit included sessions on improving legal research skills, critical components of legal writing skills, web-based legal research, the future of legal research and writing, and the role of legal research and writing faculty in the new outcomes-based ABA requirements. PROFESSOR CYNTHIA STROUD In October, Professor Stroud was appointed as an assistant editor for The Journal of the Legal Writing Institute for 2010-12.

Professor Stroud was also appointed in October to the Bar Outreach Committee of The Legal Writing Institute for 2010-12. Professors Stroud and Leigh Scales gave a presentation on November 12, 2010 at Barry University School of Law in Orlando on learning outcomes and assessments in first-year legal research and writing programs to the recently formed group of Florida law schools legal writing directors, DoLFiN (Directors of Legal Writing Florida Network). In May, Professor Stroud served as an assistant editor for Volume 17 of The Journal of the Legal Writing Institute. Professor Stroud also served as a reviewer for the annual best brief award for Scribes, The American Society of Legal Writers. PROFESSOR ROD SULLIVAN In November, Professor Sullivan taught a seminar in St. Augustine on Florida’s Government in the Sunshine Act to about 100 public officials from Putnam and St. Johns counties. The seminar was organized by State Attorney R. J. Larizza of Florida’s 7th Judicial Circuit. Also in November, Professor Sullivan served as a moderator for the panel on Environmental Disasters and Litigations at a seminar entitled “Environmental Disaster: Linking Law, Science & Policy,” held at Florida Coastal School of Law. In April, at the request of Patrick W. Krechowski, general counsel for the City of Neptune Beach, Professor Sullivan made a presentation to the Neptune Beach City Council, city employees and about 50 interested residents of Neptune Beach concerning Florida’s Government in the Sunshine Act, Public Records Act, and the Code of Ethics for Public Officers and Employees. PROFESSOR SARAH SULLIVAN On September 8, Professor Sullivan conducted a seminar for parents of developmentally disabled children at Jacksonville ARC. Professor Sullivan provides these outreach forums several times a semester regarding advance planning and alternatives for the developmentally disabled and their caregivers.

cases to the Board of Governors as one of five legislative priorities for the 2010 Florida legislative session. This legislation was the culmination of more than a year’s work performed by Professor Sullivan’s Children’s Issues committee. Professor Sullivan also spoke on March 3 at a continuing legal education seminar sponsored by the Jacksonville Bar Association’s Special Needs of Children Committee. Her talk focused on the needs of developmentally disabled children and the services available to disabled children through Medicaid. PROFESSOR JAMES J. WOODRUFF II In September, Professor Woodruff had an op-ed “America’s Vote Fraud Epidemic,” posted on The Hill ( Professor Woodruff also supervised a group of 47 students as they collected absentee ballot data from election offices across the nation in September. This project was part of the Military Voter Protection Project. The students’ efforts resulted in uncovering violations of voting laws designed to protect the military’s right to vote. The results were turned over to the United States Department of Justice. In addition, Professor Woodruff lectured on military voting rights at the RNLA Florida Election Law Seminar in Orlando. In April, Professor Woodruff received an appointment to the rank of First Lieutenant, Judge Advocate, in the Air Force Reserve. PROFESSOR ALAN G. WILLIAMS Professor Williams was the featured Grand Rounds speaker at the University of Florida College of Medicine/Shands-Jacksonville Medical Center on January 25. Professor Williams lectured on “The Medical Apology” and the current state of medical apology laws in relation to the prevention of medical malpractice claims. Professor Williams’ lecture was the first in a series of Grand Rounds presentations at UF/Shands regarding medical apology and disclosure of medical errors.

At the Florida Bar Mid-Year Meeting in September, the Family Law Section voted to send proposed legislation regarding establishment of paternity in dependency

Coastal Law Magazine | Fall 2011




Timothy Eves of Huntington, West Virginia, recently succeeded in obtaining a $32 million dollar verdict for a Navy veteran in an asbestos case. Working with local New York counsel, Eves’ successful result was reached after an eight-week trial in Manhattan. Eves is the principal attorney in the Eves Law Firm, LLC, a nationally recognized law firm that represents individuals with asbestos and mesothelioma claims, toxic torts, pharmaceutical claims, rollover and crashworthiness claims, mining injuries & deaths, railroad accidents and various other complex cases throughout the country. Sam Jubran was recently board certified in family law.


Donald Bradshaw received the Richard D. Custureri Pro Bono Service Award for his involvement in a free foreclosure clinic offered by Community Legal Services of Mid-Florida. He was honored at the Marion County Bar Association’s annual Law Day luncheon.


Michael D. McGrath, managing partner of McGrath Gibson, LLC welcomed Jessica Rose Rieffel (2009) as an associate attorney focusing her practice in family law, joining attorneys Kevin J. Loftus (associate, 2001) and Brad M. Sopotnick (partner, 2007) in the Jacksonville offices. McGrath Gibson was founded in 2007 by McGrath and M. Brad Gibson (2000) and focuses on personal injury, workers’ compensation and family law with offices in Jacksonville and West Palm Beach, Florida.

Jamie Ibrahim was recognized by the family law section of the Florida Bar through the monthly “Making a Difference” award. She was recognized for making a difference in the lives of the underserved or disadvantaged in Florida. Ibrahim is a staff attorney for the family law unit of Jacksonville Area Legal Aid, Inc. Clark Wilson recently became board certified in intellectual property by the Florida Bar.


Gretchen Brantley is at the Office of the Attorney General in Tallahassee, Florida, in the Employment Litigation Bureau. Her practice is dedicated to defending state agencies in employment-related matters before the Unemployment Appeals Commission, PERC and the EEOC. She also defends state agencies in state and federal courts against discrimination and retaliation claims. Lindsay Faroni is the new general counsel for the Pasco Sheriff’s Office. David Goldman was the subject of a recent ABA article, “Florida Lawyer Fashions Gun Trust (and Niche Practice),” which discussed NFA gun trusts and the innovative marketing for legal services. He currently works with over 150 Gun Trust Lawyers in 43 states to provide trusts to clients all over the world. Erin Moorman Pooley is a litigation associate handling insurance defense and personal injury claims with Zimmet, Unice & Salzman, P.A., a civil litigation firm located in Palm Harbor, Florida. Stephen A. Mosca is president and owner of the Mosca Law Firm, P.A. The Mosca Law Firm specializes in criminal defense and foreclosure defense litigation in both state and federal court.


Jo-Anne Yau received her sports agent license as the Yau Law Firm became the official law firm of Tom McManus’ “Suck It Up!” brands, the 2010 USA Rugby League Champions, the Jacksonville Axemen and the IrishWaterDogs outdoor apparel company. Yau is also a co-host of “Business Talk” on Blog Talk Radio.


Jay Howanitz was named one of Jacksonville Business Journal’s 40 Under 40, which honors annually 40 of Northeast Florida’s brightest, most promising professionals. He is a partner at Spohrer & Dodd PL in Jacksonville, Florida.


Coastal Law Magazine | Fall 2011

Travis Walker was elected to the St. Lucie County Boys and Girls Club Board of Directors for a term beginning in October. He will be completing his term as president of the Port St. Lucie Bar Association in September.


Rachel A. Compton, second chair, and David Sacks, lead counsel, obtained a verdict in favor of their client, the plaintiff, in the case of

Peterson v. McTyre Trucking in June. The case was a workers’ compensation retaliation claim under Chapter 440 section 205 Florida Statutes and a perceived disability discrimination claim under the Florida Civil Rights Act. Jodi Harris-Schaffer established a law practice association in Chattanooga, Tennessee with attorney Martin L. Pierce under the new name of Pierce & Schaffer, Attorneys at Law. Practice areas include estate planning, probate, elder law, Medicaid and VA planning, asset protection planning, special needs trusts, corporations and LLCs, business matters and contracts, nonprofits/501(c)(3), family law, and retirement plans and employee benefits matters. Matthew Kindel joined the St. Petersburg, Florida law firm of Yesner & Boss, P.L. Kindel was formerly a Polk County prosecutor. He works on family law cases out of the firm’s new Tampa office. Heather Lohse began active duty with the Air Force JAG Corps and is a prosecuting attorney and government representative in labor law, civil law, contract/procurement law and environmental law. She also serves fellow military and retirees by assisting with civil matters, estate planning and family law issues.


James Clifton of The Clifton Law Firm, LLC recently signed an Of Counsel agreement with Consumer Attorney Services, a national debt negotiation company. Consumer Attorney Services will use Clifton’s licensure in Georgia, California, and Texas to increase the scope of coverage and engage a larger client base.


Arthur “A.J.” Grossman and his wife Kiki opened their family law practice, Grossman & Grossman P.A., in Winter Garden, Florida.

Melissa Schwartz’s article, “A Model Linking Crisis Intervention, Political Sanctions, and Cultural Transformation: Female Genital Mutilation in Context and in Law: a Comprehensive Approach for Ending the Practice,” was published in George Mason University’s International Affairs Journal, TABLET. Her original artwork was used on the cover.

Sarah L. Terry joined the Department of Homeland Security, U.S. Customs and Border Protection, Office of Assistant Chief Counsel as a general attorney. Her primary duties include providing advice to their two largest clients U.S. Border Patrol and the Customs Field Office. She is located in the Laredo, Texas office.


Michael C. Daugherty and Kimberly M. Luckey have been admitted to the Virginia State Bar and joined the Manassas, Virginia office of the Daugherty Law Firm. Mr. Daugherty and Ms. Luckey’s areas of legal practice include criminal law, family law, divorce law and personal injury law in Virginia.

Butch Tanner recently joined Yau Law in Jacksonville, Florida. Founded by fellow Florida Coastal alumna Jo-Anne Yau, the Yau Law firm is focused on protecting businesses and representing the injured. Areas of service include personal injury; trademarks, patents & copyrights; franchise & business law; civil & criminal litigation; and BP oil spill claims.

John R. Eberhard joined the office of McGlinchey Stafford PLLC in Jacksonville, Florida. Eberhard represents clients in the financial services industry in consumer financial services litigation, real estate, bankruptcy and creditors’ rights.

Class of 2010 alumna wins first human trafficking case in detained setting; Experience confirms career path

Winston was to appear also had a high rate of denials in similar cases. In Winston’s case, there was a significant amount of legwork and research she had to do to show that her client would be persecuted if he was deported.

Jacksonville Area Legal Aid attorney Karen Winston shouldn’t have been very confident, or excited, about representing a Mexican client in a human trafficking case. Jailed for an unrelated incident at a Baker County detention facility, her client’s odds for a successful trial were abysmal, to say the least. Despite the odds, she gave the case her all, putting in late hours of intense legwork, research and study. Winston fought for her client’s rights. And she won. Winston, an alumna from the Coastal Law Class of 2010, said the case was referred to the Florida Immigrant Advocacy Center, which asked her if she could represent the client. Originally, she intended to help get him back to Miami where he could be closer to his counsel, but the judge would not allow his transfer. “Once you’ve taken on representation, you’re in it the whole way through — so I agreed to represent him up here,” said Winston, also a fellow at JALA. Her client feared persecution at the hands of his human traffickers and was seeking asylum. Asylum cases can often be very labor intensive because of the large amounts of documentation that is required. Part of the research also includes detailing the conditions of a country and the person’s actual story. The burden of proof is often much higher than other types of cases. The fact her client was from Mexico also made her case more difficult because corruption is countrywide. The immigration judge before whom

“That’s difficult to show,” she said, adding that her client also testified in a federal case against the traffickers. He was able to describe how he and others were kept in slave-like conditions, often locked in the back of trucks to ensure they would be there to do agricultural work the next day. While Winston won the initial trial, there is still a long road ahead. “It was the most challenging thing I’ve had to do so far as an attorney, but it was the most rewarding. Winning that for the client was fantastic,” she said. “Unfortunately, that is soured by the fact that the government is actually appealing the immigration judge — and the client is still being detained.” Winston said her experiences at Coastal Law with the Immigrant Rights Clinic prepared her for the kind of work she now pursues — and loves with a passion. “Although I hadn’t been to an asylum hearing, I had worked on a number of cases in the clinic and I felt like I could handle it,” she said. “Hands down, the clinic was my best experience in law school and most relevant to what I’m doing. It’s hands-on work.” She said Coastal Law Professor Ericka Curran’s knowledge of the law helped prepare her in invaluable ways. And Curran continues to be available to Winston for questions and support, as are her students. “After doing this, it’s hard work, but I couldn’t see myself doing anything else,” Winston said. “Despite the economic sacrifices, I think it’s absolutely satisfying to do this kind of work.”

Coastal Law Magazine | Fall 2011


alumni news (continued)




Larry Gilliam passed away on January 7. Prior to his death, Larry practiced family, personal injury and criminal law.


Robert Baggett and his wife Ryungso welcomed their second child, Annabelle Kim, on January 17. Robert is a special agent with the U.S. Department of State’s Foreign Service.



Jerome Smiley, Jr. passed away on April 22.


Anna Asher Lester passed away on November 15.

Paula Post and Chad Parker were married on March 20, at Casa Marina in Jacksonville Beach, Florida. Paula is currently employed at Fernandez Trial Lawyers in Jacksonville, Florida.



Natasha Plumly married Thomas Zani on May 14 in Barnesville, Ohio. Natasha is an attorney at Southeastern Legal Services in Steubenville, Ohio.

Sobrina Cox (Thomas) and her husband Dr. Shawn Cox welcomed their first child, Sophia, on January 25. Melody Gilliland married Cedric Small, class of 2009, on August 6.


Adam Joseph Marshall married Lauren Elizabeth Troxclair on April 30 in Raleigh, North Carolina. Jamie McIntyre and James Daugherty were married in a private ceremony on the beach in Ponte Vedra, Florida in May. Jamie is the contract manager for Memorial Hospital and James is director of e-commerce at George’s Music.

Kelly Stevens Ryan married fellow Coastal Law alumnus Bradley Ryan Lee on April 22 at One Ocean Resort in Jacksonville, Florida. They are both currently employed at the Apple Law Firm in Jacksonville, Florida.


Laura Stevens Gruber and her husband Tristan welcomed their first son, Thomas Andrew, on September 27. Harlan Derek Saltsman and his wife Brandi Saltsman welcomed their baby girl, Harlei Anne, on May 31.

Coastal Law Magazine | Fall 2011



Christine Parrish married David Palmer on May 6 in Maui, Hawaii.


Damien D’Ascenzio and his wife Lindsay welcomed their first son, Landon Dominick, in 2009 and will welcome another baby boy in October.

Read us online! Coastal Law Magazine has launched an accompanying website (, providing the Coastal Law community the opportunity to read, share, and link their favorite stories online.


Heather Burnett will marry Charlie Beard on December 10 at the Jekyll Island Club. Heather is currently employed at JEA as the manager of procurement contracts. Charlie is general counsel for Dikenson Klotz Real Estate Investments and an adjunct professor at Coastal Law teaching environmental law.

2007 will refresh content with each new issue, and will include online extras not found in the print version. Other features of the site will include: ability to search and link content, share stories via various social media sites, subscribe to news postings in your RSS reader and interact with each issue. In addition to Coastal Law Magazine’s official site, archived issues are also available at Issuu ( -- a site that displays the magazine issues in a digital format on your screen or mobile device.

Sarah L. Villa is engaged to David Oberliesen. Villa is an associate with Matthews Jones & Hawkins in Destin, Florida practicing in the area of criminal defense and family law. Oberliesen, a graduate of the University of Florida School of Law, is an associate with Fleet, Spencer, Kilpatrick, PA in Shalimar, Florida practicing in the area of criminal defense.


Amanda Leigh Rowland is engaged to Jonathan Barr Hampel. The wedding is planned for June 9, 2012 in Knoxville, Tennessee. Amanda is employed at the law firm of Stone & Hinds in Knoxville, Tennessee and Jonathan is a partner in the architecture firm of A Boheme Design in Rosemary Beach, Florida.

Are you connected? connect An online community available exclusively to alumni.

Coastal Law Magazine, now in its sixth issue, publishes twice a year and is the official magazine for the school and its alumni and friends. The Florida Coastal School of Law Office of Institutional Advancement publishes the magazine. Any questions or comments regarding the new site should be sent to the school’s Web Communications Assistant, Alan Smodic, at Coastal Law Magazine | Fall 2011


snapshots C O A S TA L L A W P H O T O R O U N D U P


Citizenship Day. See story on page 7.

The Coastal Law student ambassadors at 2011 Accepted Students Day

Buddy Schulz, 2011 Ehrlich Award winner. See story on page 11.

April 2011 Swearing-In

Coastal Law Dean of Faculty Development B.J. Priester at a reception during the Annual Meeting of the Florida Public Defender Association

SBA $17,500 check presentation to Voices for the Children of the First Coast. Money was raised as part of the SBA’s Annual Charity Ball.


Coastal Law Magazine | Fall 2011

Reverse Shadow Day, law school in-a-day for high school students

Lunch Around the World, an event celebrating international cultures and cuisine sponsored by the Caribbean Law Students Association and the Coastal Law Multicultural Affairs Committee

2011 alumnus Chris Saba at the graduation open house

Military Law Society Trusts & Estates Skills Lab

2011 alumna Jessica DeSantis at the graduation open house

Coastal Law Professor Karen Millard (far right) at the 2011 Pro Bono Reception with student honorees

2011 Commencement

2011 Law Review Symposium: A Decade of Transformation - The Continuing Impact of 9/11 on National Security and Civil Liberty in America Student honorees at the 2011 Pro Bono Reception Coastal Law Magazine | Fall 2011


q&a A C O N V E R S AT I O N W I T H C O A S TA L L A W ’ S D A N I E L C O H N

Third-year Coastal Law student Daniel Cohn was born in Greenville, South Carolina, and grew up in Atlanta. After graduating from the College of Charleston in South Carolina, he worked in three local law enforcement agencies and the Federal Bureau of Investigation before ultimately deciding to attend law school. While at Coastal Law he has externed for the chief judge of the Court of Appeals of Georgia and the chief justice of the Florida Supreme Court.This fall he is externing with a federal magistrate in the United States District Court for the Middle District of Florida.

What prompted you to come to Coastal Law? I decided to enter law school in the spring semester. Since Coastal was one of only a couple of schools in the Southeast that allowed for spring admits, and was the only fully accredited school, the choice was simple. It turned out to be a good decision. What have been your favorite classes/faculty and why? The first-year doctrinal courses were great. They provided the foundation for legal analysis and the first exposure to blackletter law. I am looking forward to more practical courses in this last year, such as Pretrial Litigation Drafting. As for faculty, Professor Moody is a wonderful professor to have in the classroom, and Professor Reiber was outstanding as well. Each has a demeanor and style that provides for a great classroom dynamic and learning experience. You chose to clerk over the summer in Tallahassee. How/why did you make that decision? The externship was a prestigious opportunity offered to few students. It was easy to accept for that reason alone. But it also provided me an opportunity to have a glimpse at the


Coastal Law Magazine | Fall 2011

inner workings of this state’s highest court, and to work on some of the difficult and complex legal issues presented to it for disposition. Aside from a federal appellate court, there isn’t really a better externship experience out there, in my opinion. You’re advancing into your third and final year of law school. What are you looking forward to the most? Of course I am looking forward to finishing school and getting into practice. But I am also looking forward to the courses that I have been most interested in, including an independent study next spring. I haven’t picked a topic yet, but I will enjoy the opportunity to research an issue in depth and, hopefully, have some analysis to offer that is worthy of scholarly publication. Any advice for the incoming class? Buckle down. Study hard. Accept that law school is different from anything you’ve ever done before. Get rest and exercise. But most importantly, maintain perspective: it lasts only three years, during which you should be sure to include plenty of time for your friends and family. Then you have the rest of your life to enjoy as an attorney.

National Animal Law Moot Court Com National Sexual Orientation Law Moot Court Competition

Military Justice Moot Court Competition Jessup International Law Moot Court Competition, Southeast

National Constitutional Law Moot Court Competition

Robert Orseck Memorial Moot Court Competition, the state of Florida championship

45 Best Advocate and Best Brief Awards


National Workers’ Compensation Law Moot Court Competition (Zehmer)

Military Justice Moot Cour

Orseck Moot Court Competition, the Florida state champions COASTAL LAW’S MOOT COURT PROGRAM IS Zehmer—Workers’ RANKED AMONG THE Compensation Law TOP 16 PROGRAMS Coastal Law’s Moot Court Board is currently ranked am NATIONALLY.*National Sexual Orientation To our students participating in the program, please know all of us - administration, faculty and staff - are beaming with pride over your accomplishments. Year after year you make us proud. * as recognized by the Moot Court National Championship standings

National Workers’ Compensation Law Moo

Tulane Mardi Gras Sports Law Competition

Florida Coastal School of Law 8 7 8 7 B a y p i n e R o a d I J a c k s o n v i l l e F L 3 2 2 5 6 I Te l : 9 0 4 . 6 8 0 . 7 7 1 3 I w w w . F C S L . e d u Coastal Law Magazine | Fall 2011



Service. Florida Coastal School of Law is pleased to announce the establishment of The Florida Coastal School of Law Foundation. Dedicated to our students, both present and future, and the people whom they will serve in communities worldwide, The Coastal Law Foundation is committed to furthering opportunities for students to enter the legal profession, and to pursue their passion for public service. Through the generosity of our alumni, friends, and members of the legal and corporate community, The Coastal Law Foundation’s purpose is to raise, manage, and invest funds for charitable and educational programs designed to have an impact on the lives of others, and further the highest ideals of a noble profession.

Jessica Class of 2011, Pittsburgh, PA






8787 Baypine Road Jacksonville,Florida 32256 904.256.1212

Coastal Law Magazine, Fall 2011  

Coastal Law Magazine, the magazine of Florida Coastal School of Law.

Coastal Law Magazine, Fall 2011  

Coastal Law Magazine, the magazine of Florida Coastal School of Law.