Florida Law Review Forum

Bespoke, Tailored, and Off-The-Rack Bankruptcy: A Response to Professor Coordes’s ‘Bespoke Bankruptcy’

Christopher D. Hampson

Response to Laura N. Coordes, Bespoke Bankruptcy Abstract Toward the end of every semester that I teach bankruptcy, I let my students vote on which “non-traditional” insolvency regimes they would like to study, including municipal bankruptcy, sovereign bankruptcy, and financial institutions. What I am really trying to do is convey to the students that the […]

Expanding the Frame: Using Masculinities Analyses to Challenge Gender and Race Hierarchy

Nancy E. Dowd

Abstract Response to Professor Bailey, Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment? Kimberly Bailey’s fascinating article, Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?, seeks to expose and to further analyze harassment of women by paying attention to the patterns and meaning of male-male harassment between straight men. By the sophisticated use of masculinities […]

Agents and Advisors

Deborah A. DeMott

Abstract Response to Arthur B. Laby’s, Advisors as Fiduciaries In a recent article, Advisors as Fiduciaries, Professor Arthur Laby examines the roles of advisors in multiple contexts and elaborates justifications for whether and when advice-giving does (and should) trigger the imposition of a suite of distinctively fiduciary duties of care and loyalty. Professor Laby’s article […]

Examining the Committee on Infractions’s Affirmation Rate of NCAA Enforcement Staff Allegations of Rules Violations

Josh Lens

Abstract The NCAA, the national governing body for college athletics, is in a precarious position. Battered by recent lawsuits, the NCAA is undergoing a self-initiated review designed to modernize and transform its operations through updating its constitution and rules.The enforcement process through which the NCAA enforces its myriad regulations has proven central to this review […]

“Shall Not Be Construed”: Reversal of Supreme Court Decisions by Constitutional Amendment

John v. Orth

Abstract This Article considers the way in which small changes of wording can signal large changes of thought in the United States Constitution (Constitution). Drawing upon examples found in the Eleventh and Sixteenth Amendments, and in the Reconstruction Amendments, the Article shows that there are two ways to reverse a U.S. Supreme Court decision by […]

Smart Meters as a Catalyst for Privacy Law

Matthew Tokson

Abstract Response to Matthew B. Kugler & Meredith Hurley, Protecting Energy Privacy Across the Public/Private Divide Smart utility meters raise several puzzling legal questions and answering them can help point the way toward the future of Fourth Amendment and civil privacy law. More than any other current technology, smart meters compel the development of use […]

DOJ’s Failure to Prove Its “Killer Acquisition” Claim In Sabre/ Farelogix and Parallels to Other Recent Government Merger Litigation Losses

Steven C. Sunshine and Julia K. York

Abstract On August 20, 2019, the U.S. Department of Justice (DOJ) sued to block Sabre Corporation (Sabre), a provider of a global distribution system (GDS) to travel agents, from acquiring Farelogix, Inc. (Farelogix), an IT provider to airlines. DOJ advocated a killer acquisition theory, portraying Sabre as a dominant firm intent on “tak[ing] out” Farelogix, […]

The Freedmen’s Memorial to Lincoln: A Postscript to Stone Monuments and Flexible Laws

Peter Byrne

Abstract In a recent essay in the Florida Law Review Forum, commenting on a recent article by Jess Phelps and Jessica Owley, I argued that historic preservation law poses no significant barrier to removal of Confederate monuments and even provides a useful process within which a community can study and debate the fate of specific […]

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 […]

Testa, Crain, and the Constitutional Right to Collateral Relief

Carlos M. Vázquez & Stephen I. Vladeck

Response to Ann Woolhandler & Michael G. Collins, State Jurisdictional Independence and Federal Supremacy Abstract        In Montgomery v. Louisiana, the U.S. Supreme Court held that state prisoners have a constitutional right to relief from continued imprisonment if the prisoner’s conviction or sentence contravenes a new substantive rule of constitutional law. Specifically, the Court held […]

Swallowing its Own Tail: The Circular Grammar of Background Principles Under Lucas

Gregory M. Stein

Response to Michael C. Blumm & Rachel G. Wolfard, Revisting Background Principles in Takings Litigation Abstract The exception to the rule the United States Supreme Court established in Lucas v. South Carolina Coastal Council undercuts that rule more than the Court probably anticipated, as Professor Michael C. Blumm and Ms. Rachel G. Wolfard persuasively demonstrate […]

Criminalization and Normalization: Some Thoughts About Offenders With Serious Mental Illness

Richard C. Boldt

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness Abstract While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks […]

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 […]

Requiem for a Heavyweight: The Decline and Fall of Lucas v. South Carolina Coastal Council

Daniel Farber

Abstract Response to Michael C. Blumm & Rachel G. Wolfard, Revisiting Background Principles in Takings Litigation Part I of this comment reviews Lucas and its use of the concept of background principles as an exception to takings liability. Part II will discuss Professor Blumm and Ms. Wolfard’s important contribution to our understanding of the Lucas […]

Stone Monuments and Flexible Laws: Removing Confederate Monuments Through Historic Preservation Laws

Peter Byrne

Abstract Response to Jess R. Phelps & Jessica Owley, Etched in Stone: Historic Preservation Law and Confederate Monuments Jess Phelps and Jessica Owley present an informative and useful account of how historic preservation laws might complicate or prevent efforts to remove Confederate monuments. Many lawyers and activists will be grateful for this guidance. However, Phelps […]

‘Nothing Compares 2 U:’ A Response to Beyond Compare: A Codefendant’s Prison Sentence as a Mitigating Factor in Death Penalty Cases

John H. Blume & Megan E. Barnes

Abstract Response to Jeffrey Kirchmeier, Beyond Compare: A Codefendant’s Prison Sentence as a Mitigating Factor in Death Penalty Cases The argument that the Court’s desire to eliminate arbitrariness in capital sentencing should allow juries to consider co-defendant sentences applies with equal force to juveniles sentenced to life without parole—to whom the Court has applied similar […]

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 […]

Swallowing the Rule: The Lucas Background Principles Exception to Takings Liability

Robert L. Glicksman

Abstract Response to Michael C. Blumm & Rachel G. Wolfard, Revisiting Background Principles in Takings Litigation This essay explores the authors’ assessment of the long-term impact of Lucas and why it was not transformative in precisely the way that many had expected it to be, and their valuable documentation of how the lower courts have […]

Merger Law for Biotech and Killer Acquisitions

D. Daniel Sokol

Abstract This Essay suggests a framework for how to conceptualize “killer acquisitions” in the biotech sector. In a killer acquisition, a larger branded pharmaceutical company buys a start-up company with a pipeline product with the intention to shut the pipeline product down. The Essay offers a way to police against acquisitions that may hurt consumers […]

To Protect Victims, Cross-Examine Victims

Kimbrell Hines

Abstract #MeToo, #HimToo, #UsToo. Now more than ever before, American colleges and universities are taking a more active role in combatting sexual assault on their campuses. In response to schools’ victim-centered approaches, some students have brought lawsuits against their universities questioning the fairness of the adjudication process and specifically, the right to cross-examine their accuser. […]

Diagnosing the Ills of American Monument-Protection Laws: A Response to Phelps and Owley’s Etched in Stone

Zachary Bray

Abstract Response to Jess Phelps and Jessica Owley, Etched in Stone: Historic Preservation Law and Confederate Monuments. As in their other work, Jess Phelps and Professor Jessica Owley provide this sort of vision in Etched in Stone: Historic Preservation Law and Confederate Monuments (“Etched in Stone”), their recently-published Article in the Florida Law Review. In […]

Do the Games Never End?

Shubha Ghosh

Abstract Response to Pamela Samuelson, Staking the Boundaries of Software Copyrights in the Shadow of Patents Categories create hours of fun for the legal mind. Is it this? Or is it that? Could it be both? At the end of the day, the best, but nagging, answer might be “None of the above.” Categories are […]

Objectively Correct

William D. Araiza

Abstract The nub of Professor Smith’s Response is that animus doctrine reflects the polarization of our culture to the point where the only common ground is a consensus that “it is wrong to act from pure hatred or hostility.” That realization both unlocks a doctrinal box but also warns of its contents. If hatred or […]

Objective Animus?

Written by: Steven D. Smith

Abstract The idea that a court may invalidate a law by finding it to have been motivated by “animus”—or hatred, or “a bare desire to harm a politically unpopular group”—is “flowering,” as Professor William Araiza notes in his article Animus and Its Discontents. The idea has also provoked a variety of objections. One objection asserts […]

Expanding the Merger Narrative: A Response to Sokol

Written By: John M. Newman

Abstract Professor D. Daniel Sokol’s prolific scholarly contributions to the field of antitrust are essential reading and his recent article on Vertical Mergers and Entrepreneurial Exit is no exception. In it, Professor Sokol draws upon a rich understanding of strategic management, entrepreneurship policy, and the start-up-funding ecosystem to offer a novel account of the rationales […]

Two Models for Amending The ‘Fleeing Felon’ Rule

Written by: Cynthia V. Ward

Abstract The so-called “fleeing felon” rule instructs courts and law-enforcement personnel about whether, and when, police may use deadly force to stop a suspect who is attempting to escape arrest. At common law, police were allowed to use deadly force when necessary to prevent the escape of a fleeing felon, even if the escapee did […]

The Role of GPS and Cell Phone Tracking of Employees in Big Data Law

Written by: Joanna P. Kimbell

Abstract In GPS and Cell Phone Tracking of Employees, Professor Marc McAllister makes a case for limiting the use of cell phone tracking of employees to either noninvestigatory, work-related purposes or misconduct investigations wherein the use of tracking is used only as a means to corroborate evidence that the tracked employee has committed a terminable […]

What is Lost When Philanthropy Avoids Philanthropy Law?

Written by: Benjamin M. Leff

Abstract Professor Dana Brakman Reiser has once again produced work that invites us all to look at philanthropy and philanthropy law in a fresh way. In Disruptive Philanthropy: Chan-Zuckerberg, the Limited Liability Company, and the Millionaire Next Door, Professor Reiser provides what she calls, “the definitive explanation” for a trend in philanthropy: the “seemingly bizarre […]

Judicial Partisanship in a Partisan Era: A Reply to Professor Robertson

Written by: Dmitry Bam

Abstract Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the […]

Judicial Impartiality in an Empirical Era

Written By: Tigran W. Eldred

Abstract  Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era The psychological dimensions of judicial impartiality is a topic of considerable interest, with a growing body of scholarship focused on the reasons judges often are unable to perceive their own biases. Professor Robertson’s article, Judicial Impartiality in a Partisan Era,4 makes a significant […]

Estopping Patent Harassment: A Response to Christa J. Laser

Written by: Gregory Dolin

Abstract  Response to Christa J. Laser, The Scope of IPR Estoppel: A Statutory, Historical, and Normative Analysis In her article, The Scope of IPR Estoppel: A Statutory, Historical, and Normative Analysis, Christa Laser argues that the estoppel provisions of the America Invents Act (AIA) apply only to grounds that could have been raised once the petition […]

Reentry Services for the Removed

Written By: Eda Katharine Tinto

Abstract  Response to Amy F. Kimpel, Coordinating Community Reintegration Services for “Deportable Alien” Defendants: A Moral and Financial Imperative Each year, thousands of individuals are released from prisons in the United States. Reentry services—services aimed at helping an individual reintegrate into the community upon his or her release—have long been neglected as an afterthought of […]

Learning to Live with Judicial Partisanship: A Response to Cassandra Burke Robertson

Written By: Bruce A. Green and Rebecca Roiphe

Abstract Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era In her article, Judicial Impartiality in a Partisan Era, Professor Cassandra Burke Robertson suggests that even if judges make a conscious effort not to decide cases based on partisan political identification, they may unconsciously bring their partisan views to bear. Doing so may […]

A U.S.–Mexican Law School for Deportees: A Response to Amy Kimpel

Written by: Richard Delgado

Abstract Response to Amy Kimpel, Coordinating Community Reintegration Services for “Deportable Alien” Defendants: A Moral and Financial Imperative In a recent article in the print version of this Review, Professor Amy Kimpel points out that the United States annually deports hundreds of thousands of unauthorized immigrants, most of them to Mexico, at great cost to the […]

A View of Copyright from the Digital Ground

Andres Sawicki

Abstract Response to Cathay Y. N. Smith, Beware the Slender Man: Intellectual Property and Internet Folklore Professor Cathay Smith’s Beware the Slender Man: Intellectual Property and Internet Folklore seems at first to fit comfortably within the creativity-without-IP literature, which shows that creative practices can thrive outside of the institutions built up around intellectual property law. […]

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. […]

Neither the Problem Nor the Solution Lies Solely with the Judiciary: Response to Robertson’s Judicial Impartiality in a Partisan Era

Melanie Kalmanson

Abstract Response to Cassandra Burke Robertson, Judicial Impartiality in a Partisan Era In Judicial Impartiality in a Partisan Era (“Professor Robertson’s Article”), Cassandra Burke Robertson focuses on the danger the judiciary faces as a result of “growing partisan polarization.” She should be applauded for bringing this problem to the forefront. Unquestionably, politically motivated attacks against the […]

Monumental Disagreements: A Call to Move Away From “Sign Here” Scholarship

John Murdock

Abstract Response to Richard H. Seamon, Dismantling Monuments Invited to respond to Dismantling Monuments, Professor Richard Seamon’s exploration of the legal controversies surrounding President Trump’s decision to dramatically reduce the size of two national monuments in Utah, I initially feared that I would have little to say. “Amen” adds little from a scholarly standpoint, and […]

Will Capitalism Kill Compassion?—An Analysis of the Future of Corporate Liability Under the Alien Tort Statute

Dina H. Arouri

Abstract This Note proposes that the Court erred in the recent decision, Jesner v. Arab Bank, PLC, when it failed to adopt a standard that remained faithful to Congress’s intent at the inception of the Alien Tort Statute (ATS): to remedy human rights violations while remaining relevant to the global economy. In Jesner, the Court […]

Who Will Speak For The Slender Man?: Dialogism and Dilemmas in Character Copyright

Elizabeth L. Rosenblatt

Abstract Response to Cathay Y. N. Smith, Beware the Slender Man: Intellectual Property and Internet Folklore Someone, at some time, invented Santa Claus. They did not invent him from whole cloth, of course. They drew on folklore and religious icons, and then got creative. Someone decided he lived in the North Pole; someone else decided he […]

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 […]

Coloring Outside The Lines: A Response to Professor Seamon’s Dismantling Monuments

Hope Babcock

Abstract Response to Richard H. Seamon, Dismantling Monuments In Dismantling Monuments, Professor Richard H. Seamon defends President Donald Trump’s recent proclamations modifying the boundaries of two national monuments, Grand Staircase-Escalante and Bears Ears, that Presidents Clinton and Obama each designated at the ends of their Administrations. Professor Seamon is not alone in making these arguments, as I […]

A Response to Dismantling Monuments

John C. Ruple

Abstract Response to Richard H. Seamon, Dismantling Monuments On December 4, 2017, President Trump shrank Bears Ears by 85% and the Grand Staircase Escalante by almost 50%. The question at the heart of the lawsuits that followed is simple: does the President have the legal authority to dismember our national monuments? I believe that he […]

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 […]

Another Look at Lawyer Discretion to Assist Clients in Unlawful Conduct

Samuel Levine

Abstract Response to Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct Professor Paul Tremblay’s At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct, identifies and explores an apparent gap in the law governing the work of lawyers: the question of whether lawyers may assist clients in unlawful conduct […]

Lawyers’ Constrained Fiduciary Duties: A Comment on Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct

W. Bradley Wendel

Abstract Response to Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct The Model Rules of Professional Conduct seem to have a blind spot. As Professor Paul Tremblay rightly observes, most legal ethics scholars assert that lawyers are prohibited from assisting “unlawful” conduct or, more broadly, client “wrongdoing.” However, Rule 1.2(d), […]

May Lawyers Assist Clients in Some Unlawful Conduct?: A Response to Paul Tremblay

Bruce A. Green

Abstract Response to Paul R. Tremblay, At Your Service: Lawyer Discretion to Assist Clients in Unlawful Conduct State courts regulate U.S. lawyers by adopting rules governing lawyers’ professional conduct and enforcing the rules through disciplinary processes. Since the early 20th century, the American Bar Association (“ABA”) has assisted courts in this task. Most importantly, the ABA has […]

Fla. L. Rev. Forum

Fatma Marouf Response to Professor Holper’s Article, Redefining “Particularly Serious Crimes” in Refugee Law Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law An individual who faces a significant risk of persecution in her home country is barred from asylum in the United States if she is convicted of a “particularly serious crime” (“PSC”). Despite […]

Fla. L. Rev. Forum

Rebecca Sharpless Balancing Future Harms: The “Particularly Serious Crime” Bar to Refugee Protection Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law The particularly serious crime (PSC) analysis in U.S. immigration law stands as a gatekeeper to protection from persecution abroad. Asylum applicants who meet the definition of a refugee are statutorily disqualified from […]

Fla. L. Rev. Forum

Timothy Sandefur Due Process and Agency: Compliments, Not Substitutes Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In 1816, in answer to an inquiry from a lawyer, former president Thomas Jefferson wrote that the political writings of Aristotle, valuable as they may […]

Fla. L. Rev. Forum

Sotirios A. Barber Are Professors Lawson and Seidman Serious About A “Fiduciary Constitution”? Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care, Professors Gary Lawson and Guy […]

Fla. L. Rev. Forum

Allison Crennen-Dunlap & César Cuauhtémoc García Hernández Pragmatics and Problems Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law Born of an international commitment to avoid sending migrants to countries where they face persecution on a small set of protected bases, asylum law is one aspect of U.S. immigration law that purports to serve humanitarian […]

Fla. L. Rev. Forum

Ediberto Roman The Tortious Second Amendment: A Response to Andrew McClurg’s The Right to Be Negligent  Response to Andrew Jay McClurg, The Second Amendment Right to Be Negligent In his recent provocative article addressing gun violence and the negligence of gun owners and gun sellers, Professor Andrew McClurg asserts the failure of courts and legislatures […]

Fla. L. Rev. Forum

Dmitry Karshtedt Divided Infringement, Economics, and the Common Law Response to W. Keith Robinson, Economic Theory, Divided Infringement, and Enforcing Interactive Patents This essay responds to and builds on Economic Theory, Divided Infringement, and Enforcing Interactive Patents, an article published by Professor Keith Robinson. In his article, Professor Robinson analyzed liability under various tests courts have developed […]

Fla. L. Rev. Forum

Patrick R. Goold Intent in Patent Infringement Response to Saurabh Vishnubhakat, An Intentional Tort Theory of Patents In An Intentional Tort Theory of Patents, Professor Vishnubhakat makes two arguments. First, that liability for patent infringement should only be imposed upon defendants who intentionally make, use, or sell, patented inventions. And second, that if patent infringement includes […]

Fla. L. Rev. Forum

D. Daniel Sokol Responding to Antitrust and Information Response to Herbert Hovenkamp, Antitrust and Information Technology In his recent article, Antitrust and Information Technology, Professor Hovenkamp addresses some of the most important issues involving antitrust. In particular, he addresses the issues of market power, consumer choice in the context of Google, the Apple e-books case, net […]

Response to Professor Holper’s Article, Redefining “Particularly Serious Crimes” in Refugee Law

Fatma Marouf

Abstract Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law An individual who faces a significant risk of persecution in her home country is barred from asylum in the United States if she is convicted of a “particularly serious crime” (“PSC”). Despite the grave consequences of such a conviction, there is relatively little scholarship […]

Balancing Future Harms: The “Particularly Serious Crime” Bar to Refugee Protection

Rebecca Sharpless

Abstract Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law The particularly serious crime (PSC) analysis in U.S. immigration law stands as a gatekeeper to protection from persecution abroad. Asylum applicants who meet the definition of a refugee are statutorily disqualified from protection and deported if they have been convicted of a crime considered […]

Due Process and Agency: Compliments, Not Substitutes

Timothy Sandefur

Abstract Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In 1816, in answer to an inquiry from a lawyer, former president Thomas Jefferson wrote that the political writings of Aristotle, valuable as they may be in general, were “almost useless” for understanding […]

Are Professors Lawson and Seidman Serious About A “Fiduciary Constitution”?

Sotirios A. Barber

Abstract Response to Gary Lawson & Guy I. Seidman, By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care In By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care, Professors Gary Lawson and Guy I. Seidman elaborate part of their argument for a “fiduciary Constitution” that […]

Pragmatics and Problems

Allison Crennen-Dunlap & César Cuauhtémoc García Hernández

Abstract Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law Born of an international commitment to avoid sending migrants to countries where they face persecution on a small set of protected bases, asylum law is one aspect of U.S. immigration law that purports to serve humanitarian purposes. Its humanitarianism is thwarted, however, when migrants […]

A Response to Aubrey Burris’s ‘Hell Hath No Fury Like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute’

Teresa Drake

Abstract Response to Aubrey Burris, Hell Hath No Fury like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute In her thoughtful note, Aubrey Burris notes that revenge porn is readily compared to sexual harassment, domestic violence, and cyber-rape. Her note highlights that nonconsensual pornography fuels tactics of domestic abuse and […]

Potential Within the Architecture: Explaining the Debate Over the Construction of Social Media

Jeffrey Riley

Abstract Response to Aubrey Burris, Hell Hath No Fury like a Woman Porned: Revenge Porn and the Need for a Federal Nonconsensual Pornography Statute My intentions with this essay, which is a response to Aubrey Burris’s call for more federal oversight of the world of “revenge porn,” is not to challenge or support the explicit legal […]

In Response to Rafael I. Pardo’s The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy

Michael A. Olivas

Abstract Response to Rafael I. Pardo, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy In this essay, I attempt two impossible tasks. First, limited to approximately 1,000 words, I respond to Professor Rafael Pardo’s towering 78 page article, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and […]

A Response to Professor Rose’s ‘Shareholder Proposals in the Market for Corporate Influence’

Robert J. Rhee

Abstract Response to Paul Rose, Shareholder Proposals in the Market for Corporate Influence Professor Paul Rose’s Shareholder Proposals in the Market for Corporate Influence makes a significant contribution to the literature on shareholder proposals. The empirical data on shareholder voting trends from 2003 to 2013 was informative, and the insights Professor Rose derives there from are plausible conclusions. […]

Illuminating the Dark Matter of Intellectual Capital

Charlene D. Luke

Abstract Response to Lily Kahng, The Taxation of Intellectual Capital Professor Lily Kahng’s article, The Taxation of Intellectual Capital, highlights the distortion contained in the current tax rules governing capitalization. Her article emphasizes that U.S tax law systematically fails to require capitalization for self-created, high-value intangible assets. Professor Kahng’s contribution is to situate the problem in a […]

Easy Access to Loans, But What About Access to Justice?

Brooke D. Coleman

Abstract Response to Rafael I. Pardo, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy Rafael Pardo’s article, The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy, thoughtfully details how, in bankruptcy litigation involving student-loan debt, repeat-player creditors have an undoubted advantage. This advantage, however, goes beyond the standard […]

The Quantification of the Productive Inefficiencies of Patent Production

Xavier Seuba

Abstract Response to William Hubbard, The Debilitating Effect of Exclusive Rights: Patents and Productive Inefficiency Professor William Hubbard’s article, The Debilitating Effect of Exclusive Rights: Patents and Productive Inefficiency, starts by asking, “Are we underestimating the costs of patent protection?” One reaction to that initial question might be excitement that some researcher has calculated the costs and benefits […]

Comments on “Taxation of Intellectual Capital:” Better than Consumption-Tax Treatment?

Karen C. Burke

Abstract Response to Lily Kahng, The Taxation of Intellectual Capital In Taxation of Intellectual Capital, Professor Lily Kahng argues that U.S. tax law is fundamentally flawed because it allows businesses to “expense” investments in self-created intangibles. The article draws on research in related areas (knowledge management, financial accounting, and national accounting) that seeks to identify and […]

Who Watches the Watchers? Judges, Guilty Pleas, and Outsider Review

Laura I Appleman

Abstract Response to Anne Traum, Using Outcomes to Reframe Guilty Plea Adjudication The principles that justify our imposition of punishment in public jury trials rapidly disintegrate in the informal, private realm of plea agreements. But what is the best way to regulate a system that does most of its adjudication behind closed doors? In her article, Using […]

Ideology, Gentile and Pretrial Attorney Speech: A Response to Professor Tarkington

Kenneth B. Nunn

Abstract Response to Margaret Tarkington, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity Attorneys are officers of the court and essential to the proper functioning of the criminal justice system. In that system, they represent opposing parties with conflicting, indeed adversarial, interests. Should the speech of attorneys be regulated in the American […]

Low Sanctions, High Costs: The Risk to Democratic Freedom

Cassandra Burke Robertson

Abstract Response to Irina D. Manta, The High Cost of Low Sanctions Professor Irina Manta deftly combines insights from behavioral economics, political theory, and legal analysis in her piece The High Cost of Low Sanctions. Her central argument is that a seemingly reasonable political compromise can backfire in troubling ways. Specifically, the decision to enact a framework […]

Googling Down the Cost of Low Sanctions

Gregory Dolin, M.D.

Abstract Response to Irina D. Manta, The High Cost of Low Sanctions When we as a society decide that a particular conduct is problematic, we are faced with a choice of how to prevent and punish such conduct. Generally speaking, the more problematic the conduct, the higher the sanction imposed as punishment and the more likely […]

Dealing With Corporate Misconduct

Peter J. Henning

Abstract Response to Lawrence A. Cunningham, Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform The standard method, these days, to resolve a criminal investigation of a corporation, particularly those with publicly traded shares, is a deferred or non-prosecution agreement. Under such agreements, the company generally pays a fine, some of which have been […]

Self-Control Engineering

Manuel A. Utset

Abstract Response to Miriam H. Baer, Confronting the Two Faces of Corporate Fraud Professor Miriam Baer’s article, Confronting the Two Faces of Corporate Fraud, is an important contribution to the growing literature on self-control problems and criminal misconduct. Professor Baer is concerned with both time-consistent (TC) and time-inconsistent (TI) misconduct. One of the important contributions of Professor […]

Questioning the Ubiquitousness, But Not the Value, of Arbitration Carve-outs

Larry A. DiMatteo

Abstract Response to Christopher R. Drahozal & Erin O’Hara O’Connor, Unbundling Procedure: Carve-Outs from Arbitration Clauses Christopher R. Drahozal & Erin O’Hara O’Connor’s article entitled Unbundling Procedure: Carve-Outs from Arbitration Clauses impressively describes the phenomena of carving-out and carving-in in dispute resolution clauses. My review of numerous international contracts, especially those involving the sale of goods, has found that […]

And Therefore . . . . : Comments on “Unbundling Procedure: Carve-Outs from Arbitration Provisions”

Jeffrey L. Harrison

Abstract Response to Christopher R. Drahozal & Erin O’Hara O’Connor, Unbundling Procedure: Carve-Outs from Arbitration Clauses In Unbundling Procedure: Carve-Outs from Arbitration Clauses, Christopher R. Drahozal and Erin O’Hara O’Connor offer a wealth of information about how sophisticated parties allocate the costs and risks of various forms of dispute resolution. What they discover is that these parties, […]

Keeping Low Sanctions Low

Clark D. Asay

Abstract Response to Irina D. Manta, The High Cost of Low Sanctions In her thoughtful new article, The High Cost of Low Sanctions, Professor Irina D. Manta provides a useful analysis of the (often) unanticipated negative effects that low legal sanctions can have. While the presence of low legal sanctions may assuage the public’s concerns about any […]

Rehabilitating Corporations

Brandon L. Garrett

Abstract Response to Lawrence A. Cunningham, Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform Blockbuster corporate fines grab headlines, but corporate criminal prosecutions have rapidly evolved far beyond using monetary penalties to punish complex organizations. A central goal of federal prosecutors is to rehabilitate corporations, and not simply to fine them. Indeed, […]

Further Reflections on the Pardoning Power: Reply to Hoskins and Drinan

Chad Flanders

Abstract Response to Zachary Hoskins, Problematic Pardoning Patterns and Cara H. Drinan, Where Pardons are Concerned, Second Best Might Not Be So Bad After All: A Response to Chad Flanders First, let me express my gratitude to the incisive comments of Zach Hoskins and Cara Drinan. I have long been a fan of Hoskins’s work, and his […]

The Trespass Fallacy’s Limits-A Response to Adam Mossoff

Camilla A. Hrdy & Ben Picozzi

Abstract Response to Adam Mossoff, The Trespass Fallacy in Patent Law  In his engaging new essay, The Trespass Fallacy in Patent Law, Professor Adam Mossoff challenges the reasoning of prominent commentators who criticize the patent system on the basis that patent claims are not as clear and determinate as real property boundaries. Professor Mossoff’s essay reminds us […]

The Trespass Fallacy in the “Software Patent” Debate

Ryan T. Holte

Abstract Response to Adam Mossoff, The Trespass Fallacy in Patent Law In The Trespass Fallacy in Patent Law, Professor Adam Mossoff details how patent law jurisprudence and scholarship is dominated by an indeterminacy critique or “trespass fallacy” in two respects. First, describing conceptual error, Professor Mossoff details how judges and academics have improperly conflated the entire legal rights of […]

The Indeterminacy Critique and the Trespass Fallacy

Shine Tu

Abstract Response to Adam Mossoff, The Trespass Fallacy in Patent Law One of the key functions of patents is to put the public on notice as to what they are allowed to use, sell, or manufacture without a patentholder’s consent. Determining patent scope, however, is one of the most contentious and difficult tasks in modern patent […]

Cognitive Economy and the Trespass Fallacy: A Response to Professor Mossoff

Saurabh Vishnubhakat

Abstract Response to Adam Mossoff, The Trespass Fallacy in Patent Law In his recent essay The Trespass Fallacy in Patent Law, Professor Adam Mossoff argues cogently that the metaphor of trespass has become a misused basis for patent indeterminacy critiques that it cannot conceptually or empirically support. While sharing his caution that metaphors are not to be […]

Dampening Financial Regulatory Cycles Via Dynamic Regulation—A Comment on Professor McDonnell

Wulf A. Kaal

Abstract Response to Brett McDonnell, Dampening Financial Regulatory Cycles A key assumption underlying most of the proposals Professor McDonnell analyzes is that rules could and should be optimally tailored to address a perceived regulatory problem. In fact, the assumption that stable and optimal rules are an adequate remedy in many ways supports and perpetuates financial regulatory cycles. A key […]

Where Pardons Are Concerned, Second Best Might Not Be So Bad After All: A Response to Chad Flanders

Cara H. Drinan

Abstract Response to Chad Flanders, Pardons and the Theory of the “Second Best” In his article, Pardons and the Theory of the “Second Best,” Professor Flanders asserts that pardons are “second best” in two ways. First, they tend to be granted when the criminal justice system has failed in some way. Second, pardons “en masse” […]

American Innovation and the Limits of Patent Law: A Response to William Hubbard, Competitive Patent Law

Christopher B. Seaman

Abstract Response to William Hubbard, Competitive Patent Law Although it has recently come under fire from both theoretical and empirical perspectives, the promotion of innovation remains the predominant justification for U.S. patent law. In Competitive Patent Law, Professor William Hubbard makes a valuable contribution regarding an underexplored aspect of patent law’s ability to encourage innovation—namely, “whether […]

Swimming Upstream

Michael C. Macchiarola

Abstract Response to Brett McDonnell, Dampening Financial Regulatory Cycles While more a diagnosis than a prescription, Professor Brett McDonnell’s Dampening Financial Regulatory Cycles makes a noteworthy contribution in defense of the aspiration that “[f]inancial regulation should be countercyclical.” The Article offers a refined examination of the procyclical nature of our financial regulation and introduces three competing […]

Problematic Pardoning Patterns 

Zachary Hoskins

Abstract Response to Chad Flanders, Pardons and the Theory of the “Second Best” In his engaging article, Chad Flanders examines the justification of executive pardons. The article’s key contribution is its contention that we cannot determine whether pardons are justified solely by considering them individually.  It is not enough, that is, to ask in each […]

Context Matters: A Reply to Professor Eisenberg

Susan Bisom-Rapp

Abstract Response to Deborah Eisenberg, Regulation by Amicus Professor Deborah Eisenberg has produced a fine and important work, Regulation by Amicus, which assesses U.S. Department of Labor (DOL) efforts to influence statutory interpretation and effectuate public policy through the use of friend of the court briefs in private litigation. Most notably, she focuses on the unconventional […]

Piggybacking on Glory

Margit Livingston

Abstract Response to Marc Edelman, Closing the “Free Speech” Loophole In his recent Article on the right of publicity for college athletes, Professor Marc Edelman proves prescient in his arguments that a video game manufacturer using likenesses of college athletes violated their publicity rights and could not reasonably shelter itself behind the First Amendment. Since the […]

Response to Steve Calabresi and Abe Salander

Corey Brettschneider

Abstract Response to Steve Calabresi and Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers I am pleased to respond to the astute and provocative essay by Steven Calabresi and Abe Salander. We agree that some violations of religious freedom are best understood as violations of equality. We also share the view that the […]

Securities Enforcement in Extraordinary Times

James J. Park

Abstract Response to Amanda M. Rose and Larry J. LeBlanc, Policing Public Companies In Policing Public Companies, Professors Amanda M. Rose and Larry J. LeBlanc compile and analyze an impressive dataset of securities litigation against public companies from 2004 through 2006, a period soon after the collapse of the internet bubble, the Enron and WorldCom […]

More on Veils: Reply to Levitt and Muller

Chad Flanders

Abstract Response to Justin Levitt, You’re Gonna Need a Thicker Veil and Derek T. Muller, Disfavored Candidates and the Democracy Canon I thank Justin Levitt and Derek Muller for their thoughtful replies to my article, which have helped me (at least) to understand my own position better. I also thank the Florida Law Review for giving […]

Book Review of Former Chief Justice Charley Wells, Inside Bush v. Gore

Allen Winsor

Abstract Book Review of Former Chief Justice Charley Wells, Inside Bush v. Gore Charley Wells’s new book—Inside Bush v. Gore—offers readers a rare behind-the-scenes look at one of the most controversial legal disputes in this nation’s history. More than a dozen years have passed since the United States Supreme Court decided Bush v. Gore, effectively sealing […]

Benefits and Limitations of Computer Content Analysis of Legal Documents

Corey Rayburn Yung

Abstract Response to Chad Oldfather, Joseph Bockhorst, and Brian Dimmer, Triangulating Judicial Responsiveness Collectively, the United States Courts of Appeals are a behemoth. The judges on those federal appellate courts issue approximately 30,000 decisions per year; the Supreme Court’s 70 to 80 cases seem miniscule by comparison. The courts of appeals are the court of last resort for […]

Shifting Tides: Moving Climate Change Litigation Beyond Business as Usual

Sean J. Wright

Abstract Response to Dave Markell and J.B. Ruhl, An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual  In An Empirical Assessment of Climate Change in the Courts: A New Jurisprudence or Business as Usual, Dave Markell and J.B. Ruhl fill a fundamental gap in our understanding of the quickly evolving field of […]

Trial and Appellate Judging in the Measure of Judicial Responsiveness

Robin J. Effron

Abstract Response to Chad Oldfather, Joseph Bockhorst, and Brian Dimmer, Triangulating Judicial Responsiveness In Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship, Chad Oldfather, Joseph Bockhorst, and Brian Dimmer initiate a provocative dialogue about measuring judicial responsiveness by providing innovative tools for assessing how closely judicial opinions hew to the arguments and information provided by litigants. The authors’ primary […]

Middlemen

Derek E. Bambauer

Abstract Response to Jacqueline Lipton, Law of the Intermediated Information Exchange Meet the new boss, same as the old boss. The Internet was supposed to mean the death of middlemen. Intermediaries would fade into irrelevance, then extinction, with the advent of universal connectivity and many-to-many communication. The list of predicted victims was lengthy: record labels, newspapers, department stores, travel agents, stockbrokers, […]

Testing Fuller’s Forms and Limits

Scott R. Bauries

Abstract Response to Chad Oldfather, Joseph Bockhorst, and Brian Dimmer, Triangulating Judicial Responsiveness In Triangulating Judicial Responsiveness, Chad Oldfather, Joseph Bockhorst, and Brian Dimmer give us a methodology by which we can empirically assess (among other things) the effects that argumentation has on judicial decision making. Unlike the vast majority of empirical legal scholarship of judging, the authors do not use this […]

You’re Gonna Need a Thicker Veil

Justin Levitt

Abstract Response to Chad Flanders, Election Law Behind a Veil of Ignorance In his latest piece, Professor Chad Flanders again adds to our understanding of the central problem of election law: the hunt for means to distinguish electoral rules that are “fair” from those that are not. Legislators and administrators have the presumptive democratic legitimacy to create policy on […]

Magic Words and the Erie Doctrine

Adam N. Steinman

Abstract Response to Sergio Campos,  Erie as a Choice of Defaults It has been seventy-five years since the Supreme Court decided Erie Railroad Co. v. Tompkins. Erie now claims paternity over a broader doctrine that mediates whether state law or federal law will govern particular aspects of a federal court lawsuit. That doctrine has evolved over time, […]

Disfavored Candidates and the Democracy Canon

Derek T. Muller

Abstract Response to Chad Flanders, Election Law Behind a Veil of Ignorance “Democracy” is a chameleon-like word, used almost everywhere and meaning almost anything. Chad Flanders’s thoughtful article in part disciplines the meaning of “democracy” when it draws an important distinction between popular democracy and legislative democracy when interpreting election statutes and evaluating the applicability […]

A Horse is Not Always a Horse, of Course

Irina D. Manta

Abstract Response to Jacqueline Lipton, Law of the Intermediated Information Exchange It was a pleasure to read Professor Jacqueline Lipton’s piece Law of the Intermediated Information Exchange. Her ambitious project is to provide a unifying theory of cyberlaw, at the heart of which lies her proposal to reframe the field as a law of the […]

Jurisdiction and Constitutional Crisis

William Baude

Abstract Response to Gerard Magliocca, The Gold Clause Cases and Constitutional Necessity Courts don’t always do what the President wants, and sometimes the President wants to fight back. As Gerard Magliocca’s interesting article points out, Presidents have a range of options for political resistance. But what about their options for legal resistance? It turns out […]

The Case Against Appointing Politicians to the Supreme Court

Brannon P. Denning

Abstract Response to Benjamin Barton, An Empirical Study of Supreme Court Justice Pre-Appointment Experience Ben Barton’s recent paper concludes that the members of the current Court are more “cloistered and detached” than at any other point in the Court’s history. His findings are bound to renew calls for the appointment of politicians to the Court; but […]

The Flight From Judgment

Jennifer Hendricks

Abstract Response to Benjamin Barton, An Empirical Study of Supreme Court Justice Pre-Appointment Experience In their book, Practical Wisdom: The Right Way to Do the Right Thing, Barry Schwartz and Kenneth Sharpe highlight the task of sentencing a convicted criminal as quintessentially calling for practical wisdom. Wisdom, they argue, is not a transcendent state to be […]

The Pre-Appointment Experience of Supreme Court Justices

Timothy P. O'Neill

Abstract Response to Benjamin Barton, An Empirical Study of Supreme Court Justice Pre-Appointment Experience Benjamin H. Barton’s recent article, An Empirical Study of Supreme Court Justice Pre-Appointment Experience, makes a significant contribution to the growing body of work that compares and contrasts the professional and educational backgrounds of the current members of the Roberts Court […]

Why History Matters in the Patentable Subject Matter Debate

Adam Mossoff

Abstract Response to Michael Risch, America’s First Patents In America’s First Patents, Michael Risch proves that nothing beats the facts when it comes to making or assessing claims about the history of patentable subject matter doctrine. Of course, one might ask why we should care about history, especially when justifying or critiquing legal rules that secure property […]

What Do America’s First Patents Have to Do With Today’s?

Kristen Osenga

Abstract Response to Michael Risch, America’s First Patents I was excited to read Michael Risch’s latest Article, America’s First Patents, in large part because he and I generally agree, especially when it pertains to the topic of patent-eligible subject matter. In this Article, Professor Risch examines patent-eligible subject matter through a unique lens—history based on early patents. Read […]

Razing the Funhouse?

Shubha Ghosh

Abstract Response to Michael Risch, America’s First Patents Whether as a scholar or just an ordinary thoughtful person, one cannot completely ignore history. At the same time, the past is annoying, used to promote a whole host of agendas in the guise of tradition, legitimacy, respect. Michael Risch’s engaging and just plain fun article looks at […]

Judges Are (and Ought to Be) Different

Peter D. Webster

Abstract Response to Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida Scott Hawkins’s Perspective on Judicial Merit Retention in Florida makes a number of important points, one of which in particular warrants emphasis as Florida voters prepare to go to the polls to determine the fate of the justices and appellate judges standing for retention. The […]

Merit Retention Elections

Joseph W. Little

Abstract Response to Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida Florida Bar Immediate Past President Scott Hawkins’s law review essay publishes this eye-catching fact: “90% of the participating voters do not understand what the term ‘judicial merit retention’ means.” This ignorance sends a troubling message because merit retention of appellate judges has been the law […]

How Florida Accepted Merit Retention: Nothing Succeeds Quite Like a Scandal

Martin A. Dyckman

Abstract Response to Scott G. Hawkins, Perspective on Judicial Merit Retention in Florida The wisdom of selecting judges on merit was slow to take root in the Sunshine State. It had been advocated since the 1940s, first by the Florida State Bar Association and then by the official Florida Bar, but a notoriously malapportioned, rural-dominated legislature was […]

Imagining the Open Road

Brooks Holland

Abstract Response to Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream  I first read a draft of Nancy Leong’s Article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream (“Open Road”), while my law school was preparing to host a conference on […]