Attorney Practice
The Secret Sauce: Examining Law Schools That Overperform on the Bar Exam
Christopher J. Ryan, Jr. & Derek T. Muller
Abstract Since 2010, law schools have faced declining enrollment and entering classes with lower predictors of success despite recent signs of improvement. At least partly as a result, rates at which law school graduates pass the bar exam have declined and remain at historic lows. Yet, during this time, many schools have improved their graduates’ […]
Forgotten But Not Forgiven: Remedies for Student Loan Debtors in Public Service
Andrew Goring
Abstract This Note identifies a timely issue with student loans and discusses potential remedies. Under the Public Service Loan Forgiveness program, borrowers of federal student loans who make 120 qualifying monthly payments while working in public service may have their loans forgiven. When a loan is forgiven, the borrower no longer has to pay the […]
The Appearance of Professionalism
Elizabeth B. Cooper
Abstract The dominant image of a lawyer persists: a neatly dressed man wearing a conservative dark suit, white shirt, and muted accessories. Many attorneys can conform to this expectation, but there are a growing number of “outsider” lawyers for whom compliance with appearance norms can challenge their fundamental identities. People of color, women, LGBTQ individuals, […]
Dru D. Stevenson & Nicholas J. Wagoner, Bargaining in the Shadow of Big Data
Attorney bargaining has traditionally taken place in the shadow of trial as litigants adjust tactics—and their inclination to negotiate a settlement—based on their forecast of the outcome of a trial and its associated costs. Lawyers bargaining on the verge of trial have traditionally relied on their intuition, knowledge of precedent, and previous interactions with the […]
John O. McGinnis & Steven Wasick, Law’s Algorithm
This Article offers a historical, theoretical, and practical perspective on law as an information technology. Law fundamentally concerns information—providing information to the community about the content of legal norms and, at least in its common law form, eliciting information about the world from the disputes before a court. This Article first surveys law’s history as […]
Ronald J. Allen, How to Think About Errors, Costs, and Their Allocation
There is an ongoing, robust debate about the structure of litigation, and in particular, about access to the courts. For a considerable period of time, the mantra that the courts should be readily available to all the people so that people may present claims that their rights have been violated has dominated academic discourse and […]
Steven L. Schwarcz, Compensating Market Value Losses: Rethinking the Theory of Damages in a Market Economy
63 Fla. L. Rev. 1053 (2011)| | | ARTICLE :: The BP Deepwater Horizon oil spill and the Toyota car recalls have highlighted an important legal anomaly that has been overlooked by scholars: judicial inconsistency and confusion in ruling whether to compensate for the loss in market value of wrongfully affected property. This Article seeks […]
Jonathan Witmer-Rich, Interrogation and the Roberts Court
63 Fla. L. Rev. 1189 (2011)| | | ARTICLE :: Through 2010, the Roberts Court decided five cases involving the rules for police interrogation under the Fifth and Sixth Amendments: Kansas v. Ventris; Montejo v. Louisiana; Florida v. Powell; Maryland v. Shatzer; and Berghuis v. Thompkins. This Article argues that these decisions show the Roberts […]
Nathan A. Frazier, Amending for Justice's Sake: Codified Disclosure Rule Needed to Provide Guidance to Prosecutor's Duty to Disclose
63 Fla. L. Rev. 771 (2011)| | | | ABSTRACT :: “I wouldn’t wish what I am going through on anyone,” Senator Ted Stevens commented after losing his seat in the United States Senate on November 18, 2008. Senator Stevens lost the race largely because a criminal conviction damaged his reputation. After Senator Stevens endured […]
Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago
63 Fla. L. Rev. 487 (2011)| | | | INTRODUCTION :: Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they […]
Kevin M. Clermont, Sequencing the Issues for Judicial Decisionmaking: Limitations from Jurisdictional Primacy and Intrasuit Preclusion
63 Fla. L. Rev. 301 (2011)| | | | ABSTRACT :: This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, although the parties can control which issues they put before a judge, […]
Russell D. Covey, Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof
63 Fla. L. Rev. 431 (2011)| | | | ABSTRACT :: This Article introduces a new concept-“longitudinal guilt”-which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to […]
Adam Denver Griffin, The Federal Sentencing Guidelines' Abuse of Trust Enhancement: An Argument for the Professional Discretion Approach
63 Fla. L. Rev. 457 (2011)| | | | INTRODUCTION :: In a national issue of first impression for the circuit courts, the Eleventh Circuit, in United States v. Louis, held that a federally licensed firearm dealer who knowingly sells a firearm to a convicted felon should not receive additional punishment for abusing a position […]
Sung Hui Kim, Naked Self-Interest? Why the Legal Profession Resists Gatekeeping
63 Fla. L. Rev. 129 (2011)| | | | ABSTRACT :: This Article asks and answers the following question: why does the legal profession resist gatekeeping? Or, put another way, why do lawyers resist duties that require them to act to avert harm to their corporate client, its own shareholders, and-possibly-the capital markets? While acknowledging […]
Andrew Blair-Stanek, Twombly is the Logical Extension of the Mathew v. Eldridge Test for Discovery
62 Fla. L. Rev. 1 (2010) | | | | ABSTRACT :: The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that […]
Jennifer Lynch, The Eleventh Amendment and Federal Discovery: A New Threat to Civil Rights Litigation
62 Fla. L. Rev. 203 (2010) | | | | ABSTRACT :: Lawyers for the State of California have argued recently in several federal civil rights cases that the state sovereign immunity doctrine bars all discovery issued to the state, its agencies, and its employees. While courts agree that sovereign immunity generally […]
Allison Sirica, The New Federal Pleading Standard: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)
62 Fla. L. Rev. 547 (2010) | | | | CASE COMMENT :: In the wake of the September 11, 2001 terrorist attacks, Javaid Iqbal, a Muslim citizen of Pakistan, was arrested and detained in a maximum security prison in the United States as a person of “high interest.” As a detainee, […]
Lisa Eichhorn, Sense of Disentitlement: Frame-Shifting and Metaphor in Ashcroft v. Iqbal
62 Fla. L. Rev. 951 (2010) | | | | INTRODUCTION :: Judicial opinions analyzing civil procedure issues are unlikely sources of rich imagery. Recent legal scholarship on metaphor has focused on sexier areas of the law, such as constitutional interpretation or the regulation of new technologies. Nevertheless, beneath the superficially arid terrain of civil […]
Benjamin H. Barton, Against Civil Gideon (and for Pro Se Court Reform)
62 Fla. L. Rev. 1227 (2010)| | | | INTRODUCTION :: “Civil Gideon” is a short-hand name for a concept that has been the white whale of American poverty law for the last forty years-a constitutional civil guarantee to a lawyer to match the criminal guarantee from Gideon v. Wainwright. This Article argues that the […]
Charles Short, Guilt by Machine: The Problem of Source Code Discovery in Florida DUI Prosecutions
61 Fla. L. Rev. 177 (2009) | | | | ABSTRACT :: Breath testing results stand at the core of most driving under the influence (DUI) prosecutions. Florida law provides that an individual is guilty of driving under the influence when he drives, or is in actual physical control of a vehicle, while under the […]
Alice Ristroph, How (Not) to Think Like a Punisher
61 Fla. L. Rev. 727 (2009) | | | | INTRODUCTION :: The new sentencing provisions of the Model Penal Code (MPC) forcefully assert the nature of sentencing as judicial province. “One underlying philosophy of the revised Code is that sentencing is, at its core, a judicial function.” Specifically, the new provisions aim to secure […]
Rosalie Berger Levinson, Reining in Abuses of Executive Power through Substantive Due Process
60 Fla. L. Rev. 519 (2008) | | | | ABSTRACT :: Although substantive due process is one of the most confusing and controversial areas of constitutional law, it is well established that the Due Process Clause includes a substantive component that “bars certain arbitrary wrongful government actions ‘regardless of the fairness of the procedures […]
Stephen A. Higginson, Constitutional Advocacy Explains Constitutional Outcomes
60 Fla. L. Rev. 857 (2008) | | | | INTRODUCTION :: In oral argument in Baker v. Carr, Attorney Z.T. Osborn, Jr., on behalf of Tennessee voters arguing that the U.S. Supreme Court should hold legislative apportionment a justiciable issue, exclaimed that “the motto of the Supreme Court of Tennessee is Fiat justicia ruat […]
Honorable William H. Pryor Jr., The Perspective of a Junior Circuit Judge on Judicial Modesty
60 Fla. L. Rev. 1007 (2008) | | | | TEXT :: I appreciate the invitation to deliver the Dunwody Lecture this year, and I am grateful that this occasion has allowed me to visit, for the first time, one of the premier law schools in this Circuit and our nation. The Levin College of […]
Stephanie L. Varela, Damned If You Do, Doomed If You Don't: Patenting Legal Methods and its Effect on Lawyers' Professional Responsibilities
60 Fla. L. Rev. 1145 (2008) | | | | INTRODUCTION :: Imagine, before advising each client, having to confer with the U.S. Patent and Trademark Office (USPTO) to determine whether another lawyer already owns a patent to the legal strategy you wish to propose. Imagine having to pay someone so your client can follow […]
Adam C. Losey, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege
60 Fla. L. Rev. 1179 (2008) | | | | INTRODUCTION :: Barbara Hall, an administrative assistant, often arrives at work an hour and a half early solely to check her personal e-mails on her employer’s computer. Afterwards, “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ Barbara Hall carries on a […]
Christopher R. Leslie, The Significance of Silence: Collective Action Problems and Class Action Settlements
59 Fla. L. Rev. 71 (2007) | | | | INTRODUCTION :: When the Federal Rules of Civil Procedure first provided for a class action vehicle, hopes were high that individuals would be able to act collectively to hold corporations liable for small injuries imposed upon large numbers of victims. But after almost forty years […]
Diana L. Hayes, Bankruptcy Law: An Exercise in Statutory Interpretation-Staying True to the Broad Aim of the Code or Ignoring Plain Meaning and Purpose?
59 Fla. L. Rev. 697 (2007) | | | | TEXT :: State law required Petitioner to maintain workers’ compensation coverage for his freight trucking business. Petitioner contracted with Respondent to provide this insurance. After Petitioner canceled the policy and filed a Chapter 11 bankruptcy, Respondent, in an amended claim, asserted that the unpaid premiums […]
The Honorable Rosemary Barkett, Dunwody Distinguished Lecture in Law: Judicial Discretion and Judicious Deliberation
59 Fla. L. Rev. 905 (2007) | | | | INTRODUCTION :: Thank you for the opportunity to deliver the Dunwody Distinguished Lecture in Law. It is an honor and a privilege to join the extraordinary list of those who have participated in this series of Lectures. Like Elliot and Atwood Dunwody, I am a […]
Anne Bowen Poulin, A Fair Subject for Expert Testimony?
59 Fla. L. Rev. 991 (2007) | | | | INTRODUCTION :: How can two leading commentators take diametrically opposed positions concerning the use of expert testimony to address witness credibility? After the adoption of the Federal Rules of Evidence, Judge Weinstein stated categorically that the Federal Rules permit experts to testify concerning a witness’s […]
Carole J. Buckner, Due Process in Class Arbitration
58 Fla. L. Rev. 185 (2006) | | | | INTRODUCTION :: The ubiquity of arbitration clauses in consumer and employment agreements and the Supreme Court’s plurality opinion in Green Tree Financial Corp. v. Bazzle, which implicitly permitted class arbitration, marked the beginning of a new era in class arbitration. Although it is well-established that […]
Craig Robert Senn, Knowing and Voluntary Waivers of Federal Employment Claims: Replacing the Totality of Circumstances Test with a "Waiver Certainty" Test
58 Fla. L. Rev. 305 (2006) | | | | INTRODUCTION :: Suppose you own a company and you decide to terminate an employee. Other employees have unsuccessfully sued your company for federal employment discrimination, and you want to avoid another discrimination lawsuit and its legal costs. So you offer a generous severance package to […]
Brooke R. Hardy, Criminal Procedure: Finding the Needle-Toward a More Stringent Standard for Effective Assistance of Counsel
58 Fla. L. Rev. 449 (2006) | | | | TEXT :: Petitioner was convicted by a jury of, among other offenses, brutally murdering a local barkeeper. At the sentencing phase of the bifurcated proceeding, Petitioner’s counsel presented the brief testimony of only five mitigation witnesses. Balancing the evidence, the jury found three aggravating factors […]
Carl J. Circo, Contract Theory and Contract Practice: Allocating Design Responsibility in the Construction Industry
58 Fla. L. Rev. 561 (2006) | | | | INTRODUCTION :: How much does legal theory matter to lawyers who advise clients concerning building design and construction contracts? Theory thrives in contract literature, as philosophers and legal scholars search for justification, essence, coherence, and synthesis. Lawyers litigating contract cases also invoke and confront theory […]
Kelly M. Moore, Pretext Instructions in Employment Discrimination Cases: Inferring a New Disadvantage for Plaintiffs: Conroy v. Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228 (11th Cir. 2004)
57 Fla. L. Rev. 411 (2005) | | | | TEXT :: Petitioner was fired from his position as the commercial fleet sales manager for Respondent’s car dealership in January of 2001. Respondent told Petitioner that he was being fired because although “he was doing a ‘good job’ . . . the company was going […]
Marisa Lopez, Professional Responsibility: Tortured Independence in the Office of Legal Counsel
57 Fla. L. Rev. 685 (2005) | | | | INTRODUCTION :: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” Abu Ghraib is one of the world’s most notorious prisons. Under Saddam Hussein, it was the sight of atrocious acts of […]
Kendall Coffey, Inherent Judicial Authority and the Expert Disqualification Doctrine
56 Fla. L. Rev. 195 (2004) | | | | INTRODUCTION :: With its explosion across America’s litigation landscape, expert witnessing has become a foundation for decision-making in virtually all significant cases. Described by some courts as a “cottage industry,” it has also become more lucrative than the usual day job for many professionals. With […]
Jordan G. Lee, Section 12 of The Clayton Act: When Can Worldwide Service of Process Allow Suit in any District?
56 Fla. L. Rev. 673 (2004) | | | | INTRODUCTION :: Few would claim that the requirements for personal jurisdiction in federal courts, along with those for venue, are simple to understand with unambiguous definitions and clear concepts. To make matters more complex, certain areas of the law have specific venue and personal jurisdiction […]
Justin Smith, Expert Testimony in Eminent Domain Proceedings: Oh Frye, Where Art Thou?
56 Fla. L. Rev. 831 (2004) | | | | INTRODUCTION :: Respondent, a shopping center owner in Broward County, sought damages resulting from an eminent domain taking by Petitioner, the Florida Department of Transportation. Petitioner’s partial taking resulted in a decrease in the number of available parking spaces on Respondent’s property. Respondent sought “severance […]