Florida Law Review Forum

Chad Flanders
Further Reflections on the Pardoning Power: Reply to Hoskins and Drinan
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 forthcoming book on the collateral consequences of punishment promises to be pathbreaking. The influence of Drinan’s scholarship on the pardoning power is evident in my original essay and her newer work on the Graham case has again inspired me in new directions in my research. Their comments on my essay are important in their own right, and importantly for me, they have helped to clarify my own thinking. In my brief reply, I begin by restating the main points of the article. I then try to expand on them, building off points made in both responses.
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Camilla A. Hrdy & Ben Picozzi
The Trespass Fallacy’s Limits-A Response to Adam Mossoff
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 that whether uncertainty in patent law is grounds for concern, let alone systematic reform, depends on our baseline for comparison, and astutely identifies an important weakness in the writings of critics who rely on inaccurate conceptual analogies between patents and land, and an unproven assumption that real property disputes over estate boundaries are rare and efficiently resolvedHowever, we worry that Professor Mossoff’s conclusion that patent reform should be postponed until all empirical uncertainty is resolved overestimates the significance of the trespass fallacy critique. 
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Ryan T. Holte
The Trespass Fallacy in the “Software Patent” Debate
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 patent title to the single legal doctrine of property law trespass. Second, focusing on empirical error, Professor Mossoff describes how the indeterminacy critiques of patents utilize only an idealized theory of how trespass is thought to function, without formal empirical data regarding how trespass or other real property boundaries actually function within litigation. Professor Mossoff’s essay makes an important contribution to patent law scholarship by breaking through this improper rhetoric and exposing the misleading and unverified indeterminacy critiques of patents for what they are—trespass fallacies.
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Shine Tu
The Indeterminacy Critique and the Trespass Fallacy
Response to Adam MossoffThe 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 law. In fact, many argue that the patent system is broken because patents are too vague and indeterminate to function as property rights. Many commentators note that patents lack the clear and stable boundaries provided by property law fences. In The Trespass Fallacy in Patent Law, Professor Adam Mossoff takes on this idea and shows why property law cannot currently be used as an analogy for patent law principles.
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Saurabh Vishnubhakat
Cognitive Economy and the Trespass Fallacy: A Response to Professor Mossoff
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 trifled with, this reply suggests that trespass has both a smaller role and a larger potential benefit in the debate on patent indeterminacy, and advances an opposite solution.
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Wulf A. Kaal
Dampening Financial Regulatory Cycles Via Dynamic Regulation—A Comment on Professor McDonnell
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 role for scholarship in this context could be the evaluation of supplemental governance mechanisms that help the main regulatory framework adapt to constantly changing market environments, financial innovation, and the regulatory environment.
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Cara H. Drinan
Where Pardons Are Concerned, Second Best Might Not Be So Bad After All: A Response to Chad Flanders
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” can reflect racial bias, favoritism, and arbitrariness, all of which undermine the integrity of our criminal justice system. The heart of his article theorizes how pardons should be granted in order to avoid such undermining outcomes. Specifically, Flanders contends that pardons cannot be examined exclusively at the individual level; rather, executives should consider the patterns that emerge when looking at pardons as a whole.
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Christopher B. Seaman
American Innovation and the Limits of Patent Law: A Response to William Hubbard, Competitive Patent Law
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 U.S. patent law can be tailored to provide U.S. innovators with enhanced incentives to invent” compared to foreign rivals, and thus by extension make American firms more competitive in the global marketplace.
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Michael C. Macchiarola
Swimming Upstream
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 explanatory models. More frustrating, however, is the Article’s consideration of the administrative mechanisms available to dampen financial regulatory cycles. While able to identify several “intelligent roadblocks” available to regulators looking to “block bad new rules but not beneficial ones,” the Article offers little hope that any such mechanism will be applied skillfully to reverse the procyclical regulatory bias and its attendant consequences.
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Zachary Hoskins
Problematic Pardoning Patterns 
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 case whether there exist what Kathleen Moore calls “good and sufficient reasons” for the pardon (basically, whether the pardon will remedy a miscarriage of justice of one form or another). To assess whether pardons are justified, Flanders argues that we must also examine them holistically. Pardons that are justifiable individually (because there are, we may agree, good and sufficient reasons for them) may nevertheless be unjustified if they are part of a pattern of pardoning that is racist, favoritist, or otherwise problematic.
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Susan Bisom-Rapp
Context Matters: A Reply to Professor Eisenberg
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 deployment of this strategy by the two most recent presidential administrations in the service of their interpretations of the Fair Labor Standards Act (FLSA), the federal statute governing wage and hour law. Through the often aggressive submission of amicus curiae briefs, the administration of George W. Bush aimed to use the Supreme Court’s agency deference doctrine to eviscerate worker protections,while Barack Obama’s administration has employed the same tool to revive and expand interpretations protective of employees.
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Margit Livingston
Piggybacking on Glory
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 publication of Edelman’s Article, two Federal Courts of Appeal have decided cases in favor of the athletes, recognizing the validity of their rights of publicity while holding that the game manufacturer did not sufficiently transform the athletes’ likenesses so as to qualify for a free speech defense. As a result, the manufacturer announced that it will not publish a new college football game in 2014.
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Corey Rayburn Yung
Benefits and Limitations of Computer Content Analysis of Legal Documents
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 over 99% of cases filed in federal court. For researchers, the breadth of the decisions issued has proven to be a substantial impediment to any scholarly endeavor focusing on areas of law involving large numbers of cases. Although small-scale in its aim, the article by Chad Oldfather, Joseph Bockhorst, and Brian Dimmer is a wonderful illustration of how the behemoth of the federal appellate courts might finally be tamed.
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Corey Brettschneider
Response to Steve Calabresi and Abe Salander
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 Fourteenth Amendment should protect citizens against religious discrimination. However, I argue that it is important to narrow the kinds of claims that can be brought under an equal protection framework. There is a free speech right of religions to express discriminatory views  free from government bans or coercion. But discriminatory practices, even if religious in nature, should not be entitled to exemption from general laws as a matter of equal protection.
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James J. Park
Securities Enforcement in Extraordinary Times
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 accounting frauds, and the rise of New York Attorney General Eliot Spitzer. Their results provide evidence that public companies are at significant risk of litigation brought pursuant to the securities laws. However, because the period of the study reflects the aftermath of unprecedented securities enforcement activity, its results are likely not representative of enforcement activity in normal times.
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Chad Flanders
More on Veils: Reply to Levitt and Muller
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 me the opportunity to briefly respond to them. I can’t (and probably couldn’t) give detailed or persuasive answers to their questions; instead, I want to flag some issues that they bring up, and which deserve fuller consideration than I was able to give in my article.

1. Veils, Thick and Thin. Levitt makes an excellent point almost incidentally in his reply to my piece, which I want to leap on and exploit: the “veil of ignorance”
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Allen Winsor
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 President George W. Bush’s election. But despite the passage of time and three subsequent presidential elections, the public’s fascination with the 2000 election has not diminished. Earlier this year, retired Justice Sandra Day O’Connor reignited debate by suggesting the Supreme Court perhaps made a mistake in deciding the case. And during this year’s legislative session, Florida Legislators debating new reforms to Florida’s elections code again invoked the 2000 debacle, as they have with other post-2000 amendments.
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Sean J. Wright
Shifting Tides: Moving Climate Change Litigation Beyond Business as Usual
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 climate change litigation. Seemingly rejecting (or at least debunking) the myth that courts serve as the drivers of climate change policy, they conclude that courts have displayed restraint and avoided charting new jurisprudential paths. In fact, they call this “business as usual.” As their title indicates, there are other conceivable outcomes of climate litigation. This Response accepts the empirical findings of their study, which includes all climate related cases through 2010, but suggests developments in the intervening years reveal new patterns.
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Robin J. Effron
Trial and Appellate Judging in the Measure of Judicial Responsiveness
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 objective is to assess the effectiveness of using computational methods of textual analysis to measure judicial responsiveness to the arguments and authorities presented by litigants. Drawing upon the cases decided by the First Circuit in 2004, the authors identified cases for which the court issued opinions and briefs from both parties were electronically available. The authors used a sample of thirty cases from this population to test the validity of responsiveness measures.
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Derek E. Bambauer
Middlemen
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, computer stores, and banks all confronted desuetude. Most commentators lauded the coming obsolescence as empowering consumers and achieving greater efficiency; a few bemoaned it. But disintermediation was inevitable.
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Scott R. Bauries
Testing Fuller’s Forms and Limits
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 methodology in their current study to compare “legalist” explanations of judging with “realist” explanations of judging. Rather, the study operates almost entirely within the “legalist” frame. This is a welcome development for many reasons, one on which this Response focuses—the authors’ methodology illustrates a way of scientifically “testing” descriptive legal theory claims, and it suggests an empirical way out of some longstanding theoretical disputes.
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Justin Levitt
You’re Gonna Need a Thicker Veil
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 our behalf. And yet the misdirected use of that power, intentionally or unintentionally, creates unusual danger in the electoral realm. Much ink has been spilled attempting to develop workable judicial approaches that leave the good and limit the bad.
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Adam Steinman
Magic Words and the Erie Doctrine 
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.1 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, but there remains a core of truth to the oft-stated rule of thumb that federal courts should apply state substantive law and federal procedural law. Given Erie’s mystical (and mythical) qualities, the subject of magic words seems particularly appropriate.
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Derek T. Muller
Disfavored Candidates and the Democracy Canon
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 of the Democracy Canon. Indeed, in statutory interpretation, we often justify canons by democratic values, particularly the accountability of the representatives who promulgate those statutes.
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Irina D. Manta
A Horse is Not Always a Horse, of Course
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 global intermediated information exchange. Indeed, Lipton argues that what distinguishes cyberlaw from other areas is the fact that it is bound to concern itself with actions that cannot take place without one or several intermediaries, which include Internet Service Providers (ISPs) and search engines, among others. She believes that recognizing the central nature of these service providers would go a long way toward developing laws and doctrines that advance the goals of predictability and coherence.
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William Baude
Jurisdiction and Constitutional Crisis

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 that the Constitution provides a narrow outlet for lawfully resisting the courts, and that Roosevelt’s contingency plan for the Gold Clause Cases might even have fit within it.
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Brannon P. Denning
The Case Against Appointing Politicians to the Supreme Court
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 I argue that remedying the perceived deficit of life experience and “practical wisdom” by appointing persons currently or formerly active in partisan politics would likely not deliver the claimed benefits and might affirmatively harm the Court as an institution. Read more.

 

Jennifer Hendricks
The Flight From Judgment
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 achieved by mystical means but a skill that must be learned and improved by practice, trial, and error. It is grounded in empathy, which is the cognitive ability “to imagine what someone else is thinking and feeling.” A person’s capacity for wisdom can be stunted by rote adherence to inflexible rules or by carrots and sticks that replace good character with a reward system. Professor Benjamin Barton’s new Article argues that the rarified and insular biographies of the current justices of the Supreme Court are ill-suited for developing practical wisdom. Read more.

 

Timothy P. O’Neill
The Pre-Appointment Experience of Supreme Court Justices
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 with their predecessors. I share Professor Barton’s concerns. Read more.

 

Adam Mossoff
Why History Matters in the Patentable Subject Matter Debate
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 rights in twenty-first-century innovation in high-tech computers or biotech. It’s a fair question. Read more.

 

Kristen Osenga
What Do America’s First Patents Have to Do With Today’s?
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 more.

 

Shubha Ghosh
Razing the Funhouse?
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 America’s First Patents and asks about the relevance of history to law. Read more.

 

Peter D. Webster
Judges Are (and Ought to Be) Different
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 role a judge plays in our society is (and ought to be) fundamentally different from that played by a politician or other elected representative. Judges do not (and should not) have a constituency. They do not represent anyone; rather, their sole allegiance must be to the rule of law. Read more.

 

Joseph W. Little
Merit Retention Elections
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 in Florida since 1976 and three supreme court justices and numerous district court judges are on the November general election ballot. Even worse, Florida voters themselves chose this method to hold appellate judges accountable instead of submitting them to periodic popular elections, which was the rule in Florida for most of its history as a state. Read more.

 

Martin A. Dyckman
How Florida Accepted Merit Retention: Nothing Succeeds Quite Like a Scandal
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 sterile ground. By the mid-1970s, however, circumstances had become ripe—and in a sense pungent—to accomplish in part what had seemed impossible. Read more.

 

Brooks Holland
Imagining the Open Road
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 race and criminal justice. To our great fortune, Professor Leong accepted our invitation to present this thoughtful paper. I now have re-read the Open Road to write this response paper while additionally considering Articles by David Segal, Stanley Fish, and others debating aspects of legal education—in particular, the role of faculty scholarship. My repeated engagements with the Open Road confirm that it contributes beautifully to legal education as the sort of scholarship praised by Professor Fish: academic inquiry into a “purposive . . . vision” for the project of law. Read more.

 

About the Forum

The Florida Law Review Forum is an online companion to the Florida Law Review. It features short responses to scholarship published in the printed pages of the Florida Law Review.

Responses are available in PDF format here on the Forum website, Westlaw, and LexisNexis .

We welcome submissions from professors, practitioners, judges, and legislators. Responses should be approximately 1,000 words. Each response is subject to similar editorial standards as the articles published in the Review.

To submit a response, please send an email to Executive Forum Editor Charles Wood, Jr. that includes the following:

1. A cover letter, which should include the manuscript’s word count, the title of the Florida Law Review piece to which the Author is responding, and a brief explanation of the subject matter of the response;

2. A brief biographical sketch, resume, or CV; and

3. A copy of the manuscript in Microsoft Word format.

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