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Fla. L. Rev. News

Fla. L. Rev. Forum

David DePianto
The Costs and Benefits of a Categorical Approach to Hearsay
Response to Liesa L. Richter, Posnerian Hearsay: Slaying the Discretionary Dragon

Recent remarks by Judge Richard Posner of the Seventh Circuit Court of Appeals have breathed new life into the old debate about hearsay. In a concurrence in United States v. Boyce Judge Posner suggests that judges should examine the reliability of hearsay evidence directly. Seeking to engage Judge Posner on terrain that he would appreciate, Professor Richter performs a cost-benefit analysis of his proposed rule. Her conclusion is that the flexible, three-pronged approach provided by Judge Posner is a “bad bargain” for several reasons. In this brief response, I hope to unpack and complicate Professor Richter’s claims a bit. My primary conclusion is that, while Professor Richter’s proffered solution—stay the course; make incremental improvements to the current patchwork of categorical hearsay rules—is eminently sensible, her analysis glides somewhat easily over several assumptions about how Judge Posner’s rule might operate in practice and, in turn, how the rule would impact the litigation process. Read more.





Fla. L. Rev. Forum

Charles Duan
Internet Freedom with Teeth
Response to Sapna Kumar, Regulating Digital Trade

Professor Kumar’s article identifies, at bottom, two types of errors with the Commission’s reasoning, and the important distinction between these two types of errors. First, she identifies textual or legal errors with the ITC’s analysis. But in stark contrast, the second category of errors is policy based. More brightly than the run-of-the-mill case, ClearCorrect Operating, LLC v. International Trade Commission, as elucidated by Professor Kumar’s article, illustrates this divide in judicial decision-making between the legal modes of analyses and underlying policy considerations. Full appreciation of the relevance of policy considerations to the ClearCorrect case requires an understanding of the history of the case outside the four corners of the Federal Circuit’s opinion. While Professor Kumar’s article touches upon many aspects of that history, there are numerous additional details and events that shed further light upon the case, details that the present author had the privilege to observe and participate in at times. This Article, then, seeks to offer that broader context of the case and the surrounding debate. Read more.



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