Civil Procedure

Personal Jurisdiction’s Moment of Opportunity: A Reform Blueprint for Originalists and Nonoriginalists

Allan Erbsen

Abstract Personal jurisdiction doctrine is broken, but there is a moment of opportunity to repair it. The Supreme Court has struggled for decades to explain why constitutional law sometimes prevents states from providing local remedies for local injuries. Basic questions lack satisfying answers. Should doctrine emphasize liberty or federalism? Is the Due Process Clause the […]

The Normality of Knick: A Response to Sterk and Pollack

Ilya Somin

Abstract Response to Stewart E. Sterk & Michael C. Pollack, A Knock on Knick‘s Revival of Federal Takings Litigation. The Supreme Court’s decision in Knick v. Township of Scott, has been criticized for supposedly wreaking havoc on the normal system for adjudicating takings claims, and for seriously violating norms of stare decisis. Stewart Sterk and Michael […]

Activist Judges?: Technology, Rule 1, and the Limits of Judge Matthewman’s New Paradigm for E-Discovery

David Horrigan

Response to William Matthewman, Towards a New Paradigm for E-Discovery in Civil Litigation: A Judicial Perspective Abstract The description, “activist judge,” often has a pejorative connotation in the culture wars, but what about judicial activism advocating for professionalism, cooperation, and honest good faith in e-discovery? Activism has been defined as “a doctrine or practice that […]

May Class Counsel Also Represent Lead Plaintiffs?

Bruce A. Green & Andrew Kent

Abstract For decades, courts and commentators have been aware that thepotential for conflicting interests among the class representatives, classcounsel, and absent class members is inherent in the class action device.Notwithstanding this realization and a substantial amount of scholarlyand judicial commentary on class conflicts, one kind of conflict has notreceived due attention: the conflict that inevitably […]

Wrongful Removals

Lonny Hoffman and Erin Horan Mendez

Response to Joan Steinman, Waiving Removal, Waiving Remand—The Hidden and Unequal Dangers of Participating in Litigation Abstract Professor Steinman’s treatment of the disparities in removal and remand law is sobering and deserves careful consideration by law makers. We want to add our voice to her analysis by adding some additional context and perspective on some […]

Magistrate Judge Matthewman’s New E-Discovery Paradigm and Solving the E-Discovery Paradox

William F. Hamilton

Abstract Response to William Matthewman, Towards a New Paradigm for E-Discovery in Civil Litigation: A Judicial Perspective We are gradually leaving a quasi-dystopian era of “no-holds-barred” discovery slugfests featuring overreaching, recalcitrance, posturing, and exaggeration. On the future’s horizon, advance parties have made fitful, hesitant, and, at times, successful forays into the rich terrain of electronically […]

A View From the Bench and the Trench(es) in Response to Judge Matthewman’s New Paradigm for EDiscovery: It’s More Complicated

Andrew Jay Peck

Abstract Response to William Matthewman, Towards a New Paradigm for E-Discovery in Civil Litigation: A Judicial Perspective We need more judges like my friend Judge William “Bill” Matthewman, who are willing to reflect on eDiscovery, not as a nuisance to be avoided, but in a thoughtful manner to advance the aims of Rule 1, for […]

Towards a New Paradigm for E-Discovery in Civil Litigation: A Judicial Perspective

William Matthewman

Abstract The Federal Rules of Civil Procedure provide the basic framework for production of discovery that is relevant and proportional to litigants’ claims and defenses. In the past, litigants and attorneys far too often used these rules to obstruct the discovery process rather than to facilitate it. This Old Discovery Paradigm used overbroad discovery requests, […]

Waiving Removal, Waiving Remand–The Hidden and Unequal Dangers of Participating in Litigation

Joan Steinman

Abstract The law governing removal of cases to federal court and remand of cases from federal court has increasingly been codified. But what is not codified is left to courts, and courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed […]

Teaching and Learning Personal Jurisdiction After The Stealth Revolution

Deborah J. Challener

Abstract Response to Michael H. Hoffheimer, The Stealth Revolution in Personal Jurisdiction In The Stealth Revolution in Personal Jurisdiction, Professor Michael Hoffheimer uses Bristol-Myers Squibb Co. v. Superior Court (BMS), the U.S. Supreme Court’s latest personal jurisdiction decision, as a vehicle to critically examine the Court’s recent narrowing of both general and specific personal jurisdiction. […]

The Not-So-Stealthy Revolution in Personal Jurisdiction

Judy M. Cornett

Abstract Response to Michael H. Hoffheimer, The Stealth Revolution in Personal Jurisdiction With elegant style and in devastating detail, Professor Michael Hoffheimer has analyzed the slow death spiral of personal jurisdiction under the Roberts Court. He accurately identifies one source of the frustration scholars and lower courts have felt in trying to make sense of the Roberts […]

Reflections on Hoffheimer’s The Stealth Revolution in Personal Jurisdiction

Michael Vitiello

Abstract Response to Michael H. Hoffheimer, The Stealth Revolution in Personal Jurisdiction The Supreme Court did not grant review in a case involving personal jurisdiction between 1990 and 2010 at a time when our world flattened. Since then, the Court has decided six cases. In each, the Court has found that the assertion of jurisdiction violated […]

The Muddy-Booted, Disingenuous Revolution in Personal Jurisdiction

Patrick J. Borchers

Abstract Response to Michael H. Hoffheimer, The Stealth Revolution in Personal Jurisdiction When the editors of the Florida Law Review offered me the opportunity to comment on Professor Michael Hoffheimer’s wonderfully insightful article, I almost declined. The reason is that I agree with pretty much everything of substance he says. I agree with him that the […]

The Stealth Revolution in Personal Jurisdiction

Written by: Michael H. Hoffheimer

Abstract Since 2011 the Roberts Court has decided six personal jurisdiction cases that impose significant new constitutional restrictions on the power of courts and limit plaintiffs’ access to justice. But the Court’s opinions explaining those decisions have repeatedly denied that the Court is altering settled law. This Article argues that the Court is engaged in […]

A “Procedural Nightmare”: Dueling Courts and the Application of the First-Filed Rule

Written by: Andrew J. Fuller

Abstract Pretend that Party A sues Party B in Court 1. Instead of countersuing, however, B then sues A in Court 2. The problem this Note examines is whether Court 1 may enjoin B from continuing to litigate in Court 2 if Court 2 has already declined to stay the case or transfer it to […]

Fraudulent Aggregation: The Effect of Daimler and Walden on Mass Litigation

Written by: Jeff Lingwall and Chris Wray

Abstract This Article examines the effect of the U.S. Supreme Court’s jurisdictional tightening in Daimler and Walden on mass litigation. This Article shows how the Supreme Court’s changes to general and specific jurisdiction, considered together, end the practice of tactically allocating non-diverse plaintiffs across state lines to defeat diversity jurisdiction in nationwide litigation, a doctrine […]

Byte Marks: Making Sense of New F.R.C.P. 37(e)

Written by: Charles Yablon

Abstract New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and […]

Stephen Carr, Class Actions Removability and the Changing Business of the Supreme Court: Dart Cherokee Basin Operating Co. v. Owens

Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing […]

Cole Barnett & Chris Weeg, Intervention in the Tax Court and the Appellate Review of Tax Court Procedural Decisions

The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals […]

Stephen Carr, Reconsidering Indirect-Purchaser Class Actions

Few issues have proven more vexing to private antitrust enforcement than those related to indirect-purchaser class actions. The current dual system of enforcement—federal and state—exacerbates the difficulty of litigating indirect-purchaser claims by layering procedural complexity on top of substantive complexity and by explicitly allowing (perhaps even incentivizing) duplicative recovery. Almost all commentators are in substantial […]

Cole Barnett, Is Injury a Tortious Act?: Interpreting Florida's Long-Arm Statute

Florida Statute § 48.193 enumerates several acts that grant Florida courts personal jurisdiction over nonresident defendants. Under Florida Statute § 48.193(1)(a)(2), nonresident defendants may become subject to personal jurisdiction in Florida by “committing a tortious act within this state.” The Florida district courts of appeal are split over the correct interpretation of this phrase. Along […]

Judge Emmett Ripley Cox, Thirty-Two Years on the Federal Bench: Some Things I Have Learned

In this Essay, prepared as the basis for the 2014 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, Judge Cox discusses a few things he learned from his experience as a trial judge and later as an appellate judge. Specifically, he addresses how the proliferation of federal law—both criminal and civil—imposes […]

Peter L. Markowitz & Lindsay C. Nash, Constitutional Venue

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct […]

Stephen E. Ludovici, Rule 60(b)(4): When the Courts of Limited Jurisdiction Yield to Finality

It is basic hornbook law—affirmed by courts across time and space repeatedly and unequivocally—that subject-matter jurisdiction cannot be waived. However, in the context of a Rule 60(b)(4) motion seeking relief from a void final judgment after the time for appeal has expired, the onerous standard of review used by courts causes subject-matter jurisdiction to be […]

Kevin J. Lynch, The Lock-in Effect of Preliminary Injunctions

One important bias economists and psychologists have identified is the lock-in effect. The lock-in effect causes a decision maker who must revisit an earlier decision to be locked in to that earlier decision. The effect is particularly pronounced where the earlier decision led to the investment of resources that cannot be recovered. Although lock-in does […]

Wendy Parker, Recognizing Discrimination: Lessons From White Plaintiffs

The Supreme Court has developed a robust equal protection jurisprudence to recognize the rights of whites complaining of race conscious governmental activity. This was particularly reflected in the Court’s opinion in Parents Involved, where the Roberts Court radically repositioned the meaning of Brown v. Board of Education. That opinion all but guarantees that eventually Abigail Noel Fisher will win her […]

Dane Ullian, Retroactive Application of State Long-Arm Statutes

A precondition to a court’s exercising any measure of authority over an individual or an entity is the court’s establishment of personal jurisdiction. A court may exercise personal jurisdiction over a nonresident defendant only if the forum state provides a statutory basis for exercising jurisdiction over the nonresident and the exercise of jurisdiction satisfies the constitutional due process standard. Personal […]

Andrew S. Pollis, Civil Rule 54(B): Seventy-Five and Ready for Retirement

As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative. When […]

Lauren Rehm, A Proposal for Settling the Interpretation of Florida's Proposals for Settlement

Although created to encourage settlement, few rules have generated more collateral litigation than Florida’s proposals for settlement provisions. While Florida Statutes section 768.79 creates a substantive right to attorney’s fees, Florida Rule of Civil Procedure 1.442 provides a procedural enforcement mechanism. However, through its unprecedented application of strict construction to a rule of civil procedure, […]

Sergio J. Campos, Erie as a Choice of Enforcement Defaults

The Erie doctrine governs, among other things, when a federal court sitting in diversity jurisdiction may use a federal procedure that differs from the procedure a state court would use. Displacing the state procedure with the federal procedure (or not) may impact the substantive objectives of either state or federal law, but the current Erie […]

Justin R. Pidot, The Invisibility of Jurisdictional Procedure and Its Consequences

Modern standing doctrine has been the subject of substantial scholarly inquiry. Critics charge that it allows judges to resolve cases based on their own ideologies, favoring corporations over individuals and those who harm over those harmed. The doctrine likewise disserves social justice, preventing adjudication of indisputably meritorious claims. Yet the focus on the substance of […]

Richard Esenberg, A Modest Proposal for Human Limitations on Cyberdiscovery

Many lawyers, whether by training or disposition, have come to regard discovery as a process in which no stone is to be left unturned. With the advent of electronically stored information, the stones have become too numerous to account. Discovery rules that seek the perfection of preserving and producing all potentially pertinent information have become […]

E. Donald Elliott, Twombly in Context: Why Federal Rule of Civil Procedure 4(B) Is Unconstitutional

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without […]

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 […]

Martin H. Redish, Pleading, Discovery, and the Federal Rules: Exploring the Foundation of Modern Procedure

This Article provides a foundational structural analysis underlying the federal procedural system and explores the implications of that normative framework for the proper shaping of the federal system’s pleading and discovery rules. By analyzing and synthesizing the different elements of this underlying “litigation matrix,” the Article concludes that the Supreme Court’s “plausibility” test for pleading […]

Charles W. “Rocky” Rhodes, Nineteenth Century Personal Jurisdiction Doctrine in a Twenty-First Century World

The initial twenty-first century personal jurisdiction decisions from the Supreme Court reveal that personal jurisdiction doctrine has not changed much since the nineteenth century. The nomenclature has changed, realism has replaced formalism, some fictions purportedly have been discarded, and the adjudicatory reach of courts has somewhat expanded, but the doctrine retains the same conceptual core—the […]

Jordan E. Pratt, An Open and Shut Case: Why (and How) The Eleventh Circuit Should Restrain the Government's Forum Closure Power

63 Fla. L. Rev. 1487 (2011)| | | |||| The Supreme Court has made it clear that when the government opens a nontraditional public forum, it retains the power to shut down the forum subsequently. But the Court has not specifically addressed whether this forum closure power knows any constitutional limitations. Several circuits, including the […]

Richard A. Epstein, Dunwody Distinguished Lecture in Law: The Constitutional Paradox of the Durbin Amendment: How Monopolies are Offered Constitutional Protections Denied to Competitive Firms

63 Fla. L. Rev. 1307 (2011)| | | | The Durbin Amendment is the first of the major provisions of the Dodd-Frank Act to have been implemented-but only after it withstood a constitutional challenge on the basis of the Takings Clause in the U.S. Court of Appeals for the Eighth Circuit. Now that the Amendment […]

Stewart E. Sterk and Kimberly J. Brunelle, Zoning Finality: Reconceptualizing Res Judicata Doctrine in Land Use Cases

63 Fla. L. Rev. 1139 (2011)| | | ARTICLE :: Zoning disputes provide many Americans with their only firsthand exposure to the workings of democratic government. Land use issues trigger participation because neighbors perceive the wrong kind of development as posing a double-barreled threat to the stability of the community in which they have chosen […]

Lauren A. Kirkpatrick, Treading on Sacred Ground: Denying the Appointment of a Testator's Nominated Personal Representative

63 Fla. L. Rev. 1041 (2011)|  | | PDF CASE COMMENT, Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000) :: Muriel’s mother had just died. She and her sister, Orit, had been fighting for years during their parents’ guardianship. Now Orit was bringing Muriel to court over who would act as […]

David Marcus, Flawed but Noble: Desegregation Litigation and its Implications for the Modern Class Action

63 Fla. L. Rev. 657 (2011)| | | | INTRODUCTION :: From the perspective of the present day, Rule 23 of the Federal Rules of Civil Procedure contains a difficult puzzle. After a court certifies a class pursuant to Rule 23(b)(3) in a money damages case, absent class members must receive notice and have a […]

Jim Gash, The End Of An Era: The Supreme Court (Finally) Butts Out of Punitive Damages For Good

63 Fla. L. Rev. 525 (2011)| | | | INTRODUCTION :: It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple […]

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, […]

Henry N. Butler & Joshua D. Wright, Are State Consumer Protection Acts Really Little-FTC Acts?

63 Fla. L. Rev. 163 (2011) | | | | ABSTRACT :: State Consumer Protection Acts (CPAs) were designed to supplement the Federal Trade Commission’s (FTC) mission of protecting consumers and are often referred to as “Little-FTC Acts.” There is growing concern that enforcement under these acts is not only qualitatively different than FTC enforcement […]

George D. Brown, Accountability, Liability and the War on Terror—Constitutional Tort Suits as Truth and Reconciliation Vehicles

63 Fla. L. Rev. 193 (2011)| | | | ABSTRACT :: This Article examines the role of civil suits in providing accountability for the Bush administration’s conduct of the “war on terror.” There have been calls for a “Truth and Reconciliation Commission” to perform this function, almost like a retroactive impeachment of President Bush. For […]

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 […]

Gregory C. Sisk, Lifting the Blindfold From Lady Justice: Allowing Judges to See the Structure in the Judicial Code

62 Fla. L. Rev. 457 (2010) |   |   |   | ABSTRACT :: Two centuries ago, Chief Justice John Marshall wrote that “[w]here the mind labours to discover the design of the legislature, it seizes everything from which aid can be derived.” Yet for more than half a century, Congress has forbidden judges […]

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, […]

Martin H. Redish, Peter Julian & Samantha Zyontz, Cy Pres Relief and the Pathologies of Modern Class Action: A Normative and Empirical Analysis

62 Fla. L. Rev. 617 (2010) | | | | CASE COMMENT ::The purpose of the modern class action, a procedural aggregation device authorized by Rule 23 of the Federal Rules of Civil Procedure, is to collectivize individual claims into a single proceeding, with the overwhelming majority of the plaintiffs assuming a purely passive role […]

William Smith, Florida Premises Liability on Easements of Way: Liability for Injuries to Third Parties

62 Fla. L. Rev. 829 (2010) | | | | CASE COMMENT ::Imagine for a moment that you are the proud homeowner of a single-family home in Florida. Now imagine that you and three neighboring homeowners share a private driveway that straddles the property line between the four lots, allowing vehicular and pedestrian ingress and […]

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 […]

John C. Jeffries Jr., What's Wrong with Qualified Immunity

62 Fla. L. Rev. 851 (2010) | | | | INTRODUCTION :: Qualified immunity protects government officers from damages liability for violating constitutional rights. It does not constrain injunctions, exclusion of evidence, or the defensive assertion of rights in government enforcement proceedings. Nor does it apply to all damage actions. Officers performing legislative, judicial, and […]

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 […]

Lydia Pallas Loren, Renegotiating the Copyright Deal in the Shadow of the “Inalienable” Right to Terminate

62 Fla. L. Rev. 1329 (2010)| | | | ABSTRACT :: Few people realize that many contracts that purport to transfer “all right, title and interest” in a copyright can be terminated by the author of the copyrighted work after thirty-five years (in some cases), after fifty-six years (in other cases), and sometimes even after […]

David G. Owen, Bending Nature, Bending Law

62 Fla. L. Rev. 569 (2010) | | | | INTRODUCTION :: Human relationships with one another are extraordinarily complex, yet that complexity pales in comparison to their relationships with nature. Carbon, air, water, sunlight, and various organic nutrients provide us with the essential stuff of life. Yet lightning, floods, volcanoes, earthquakes, tornadoes, tigers, viruses, […]

Calvin Massey, State Standing after Massachusetts v. EPA

61 Fla. L. Rev. 249 (2009) | | | | INTRODUCTION :: By granting states “special solicitude in our standing analysis,” the Supreme Court in Massachusetts v. EPA created substantial new uncertainty in the law of standing. At least since Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. Article […]

Dante P. Trevisani, Passenger Standing To Challenge Searches And Seizures: A Distinction without a Constitutional Difference

61 Fla. L. Rev. 329 (2009) | | | | INTRODUCTION :: On November 27, 2001, Deputy Sheriff Robert Brokenbrough noticed a Buick with expired registration tags. After verifying from the police dispatcher that the application for renewal tags was being processed, and therefore the Buick was not in violation of any traffic laws, he […]

J.C. Van Lierop III, Post-9/11 Army Disability Decisions: Reinforcing Administrative Law Principles in Fitness and Disability Rating Determinations

61 Fla. L. Rev. 639 (2009) | | | | INTRODUCTION :: Counter-Intuitive Trends in an Army at War “[T]o care for him who shall have borne the battle, and for his widow, and his orphan . . . .” -Abraham Lincoln The terrorist attacks of September 11, 2001 catalyzed two wars in Afghanistan and […]

Erwin Chemerinsky, The Meaning of Bush v. Gore: Thoughts on Professor Amar's Analysis

| | | | INTRODUCTION :: It is tempting to blame the United States Supreme Court’s decision in Bush v. Gore for the evils the Bush Administration inflicted on the nation. If only Al Gore had become president, there would not have been the disastrous war in Iraq or the enormous deficit-spending to fund it, […]

Michael S. Pardo, Second-Order Proof Rules

61 Fla. L. Rev. 1083 (2009) | | | | ABSTRACT :: Proof rules in law dictate when facts have been proven. They do so by specifying a level of proof such as by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The goals of the rules are […]

C. Douglas Floyd, In Honor of Walter O. Weyrauch: Three Faces of Supplemental Jurisdiction after the Demise of United Mine Workers V. Gibbs

60 Fla. L. Rev. 277 (2008) | | | | INTRODUCTION :: In United Mine Workers v. Gibbs, the Supreme Court rejected the narrow “cause of action” test announced in Hurn v. Oursler for what was then termed pendent-claim jurisdiction in favor of a broader “common nucleus of operative fact” standard. In subsequent cases, the […]

F. Patrick Hubbard, In Honor of Walter O. Weyrauch: Substantive Due Process Limits on Punitive Damages Awards: "Morals Without Technique"?

60 Fla. L. Rev. 349 (2008) | | | | INTRODUCTION :: In a series of cases over the last two decades, the Supreme Court has used the Due Process Clause to establish a procedural and substantive framework for awarding punitive damages. Initially, the substantive aspects of this framework were sufficiently flexible and clear that […]

Scott J. Kennelly, In Honor of Walter O. Weyrauch: Florida's Eminent Domain Overhaul: Creating More Problems than it Solved

60 Fla. L. Rev. 471 (2008) | | | | INTRODUCTION :: A knock at your front door wakes you. Blurry-eyed, you open your door to a government official who tells you that the city would like to purchase your home for a price slightly greater than fair market value. According to the official, most […]

Ann M. Scarlett, Confusion and Unpredictability in Shareholder Derivative Litigation: The Delaware Courts' Response to Recent Corporate Scandals

60 Fla. L. Rev. 589 (2008) | | | | ABSTRACT :: The Delaware courts responded to the recent wave of corporate scandals, exemplified by Enron and WorldCom, by changing their approach to shareholder derivative litigation. This Article analyzes the Delaware courts’ response to these scandals and concludes that the courts have created doctrinal confusion […]

Larry Dougherty, Does a Cartel Aim Expressly? Trusting Calder Personal Jurisdiction when Antitrust Goes Global?

60 Fla. L. Rev. 915 (2008) | | | | INTRODUCTION :: Suppose your law firm represents CrabApple, the large, California-based manufacturer of the BuyPod, a portable digital music player. CrabApple also sells songs from its online music store, BuyTunes, for use on the BuyPod. One morning, a class-action antitrust lawsuit lands on your desk. […]

Michael J. Hooi, Qualified Immunity: When is a Loss Ultimately a Win?

60 Fla. L. Rev. 979 (2008) | | | | TEXT :: Scott v. Harris, 127 S. Ct. 1769 (2007) A Georgia sheriff’s deputy clocked Victor Harris driving seventy-three miles per hour in a fifty-five mile per hour zone. After Harris ignored the deputy’s signal to pull over for speeding, the deputy began a high-speed […]

Benjamin J. Robinson, Distilling Minimum Due Process Requirements for Punitive Damages Awards

60 Fla. L. Rev. 991 (2008) | | | | TEXT :: Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007) An Oregon jury found that Jesse Williams, a long time consumer of Petitioner’s Marlboro cigarettes, died because he consumed those cigarettes. The jury was convinced that Williams consumed Petitioner’s cigarettes because he believed […]

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 […]

Jeffrey L. Harrison, Trademark Law and Status Signaling: Tattoos for the Privileged

59 Fla. L. Rev. 195 (2007) | | | | INTRODUCTION :: The motivations for buying a good or service are highly complex. At the most basic level, people buy goods because of what the goods do or because of the aesthetic elements they embody. More technically, buyers derive utility from the “functional” quality of […]

Alexandra D. Lahav, The Law and Large Numbers: Preserving Adjudication in Complex Litigation

59 Fla. L. Rev. 383 (2007) | | | | ABSTRACT :: This Article describes the transfer of power to regulate tortfeasors from the legislature to private parties through the medium of the court system and proposes that instead of privatizing mass torts administration courts should humanize it. The federal courts are faced with large […]

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 […]

Sandra Day O'Connor, Remarks on Judicial Independence

58 Fla. L. Rev. 1 (2006) | | | | TEXT :: Dedication of the Lawton Chiles Legal Information Center, University of Florida, Levin College of Law, Friday, September 9, 2005 It is a great pleasure to be here at the University of Florida to dedicate the Lawton Chiles Legal Information Center. Your new building […]

Michael Richard Dimino, Sr., Counter-Majoritarian Power and Judges' Political Speech

58 Fla. L. Rev. 53 (2006) | | | | INTRODUCTION :: Judges and judicial candidates are regularly restricted in their political speech and association by two categories of ethical canons that have only recently come under constitutional examination: those that restrict the ways judges conduct their own campaigns, and those that restrict judges’ participation […]

Matthew J. Richardson, Clarifying and Limiting Fraudulent Joinder

58 Fla. L. Rev. 119 (2006) | | | | INTRODUCTION :: Defendants in state court may properly remove civil actions to federal court on the basis of diversity jurisdiction. However, before the defendants remove the action, plaintiffs may have already attempted to defeat diversity jurisdiction by having joined a local or nondiverse defendant who […]

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 […]

Robert Michael Kline, Constitutional Law: Is There a Protected Interest in Protection (Or Are Court Orders Merely Suggestions)?

58 Fla. L. Rev. 459 (2006) | | | | TEXT :: Respondent’s husband abducted his three little girls, ages 10, 8, and 7, and shot each of them in the head at close range. He committed this abhorrent and tragic triple murder despite the fact that Respondent had obtained a restraining order commanding him […]

Chad M. Oldfather, Remedying Judicial Inactivism: Opinions as Informational Regulation

58 Fla. L. Rev. 743 (2006) | | | | INTRODUCTION :: Concern about so-called “judicial activism” is rampant. Despite a lack of consensus regarding precisely what the term means, those wielding it have in mind judges who overstep the bounds of their role. “Activist” judges usurp the authority of the political branches, decide issues […]

Rhonda Wasserman, Tolling: The American Pipe Tolling Rule and Successive Class Actions

58 Fla. L. Rev. 803 (2006) | | | | ABSTRACT :: Timing is everything. Even the most meritorious lawsuit will be dismissed if the statute of limitations has run on the plaintiff’s claim. In class action litigation, this hurdle is particularly daunting. Supreme Court precedent makes clear that if a class action complaint is […]

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 […]

Bryan T. Camp, Tax Administration as Inquisitorial Process and the Partial Paradigm Shift in the IRS Restructuring and Reform Act of 1998

56 Fla. L. Rev. 1 (2004) | | | | INTRODUCTION :: The tax code is a puzzle. Whether one views it as an engaging enigma or a ridiculous riddle, the tax code requires careful and considered attention to fit the statutory pieces together to form a sensible picture. The procedural pieces of the puzzle, […]

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 […]