Florida Law Review Forum

Calvin H. Johnson
Organizational Capital: A Comment to Professor Kahng
Response to Lily Kahng, Taxation of Intellectual Capital

In her article, Taxation of Intellectual Capital, Professor Lily Kahng has proposed to capitalize the costs of research and development, and worker training and amortize those costs over a tax life, provisionally set at five years. She would capitalize one half of the cost of advertising and top management compensation and similarly amortize the costs over five years. Professor Kahng cites the quip, attributed to Keynes, that “it is better to be imprecisely right than precisely wrong.” Read More.

Michael Risch
Nothing is Patentable
Response to Jeffrey Lefstin, Inventive Application: A History

It is a bedrock principle of patent law that abstract ideas and natural phenomena are not patentable. This idea is hardly controversial, because purely abstract and natural discoveries will not satisfy one of the explicit categories of patentable inventions: machines, methods, compositions of matter, or manufactures.1 Just above the bedrock, however, and controversy abounds when inventors claim the application of abstract ideas and laws of nature. Determining whether a simple application of an idea or phenomenon should be eligible for patenting is no easy task. Read More.

Lumen N. Mulligan
We Should Use ‘Cause of Action’ More Carefully: A Review of John F. Preis,How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction’
Response to John F. Preis, How Federal Causes of Action Relate to Rights, Remedies and Jurisdiction

If you are a litigator or a scholar of American civil litigation, I bet you used the phrase “cause of action” in the past week. Despite its ubiquity, few of us know, precisely, what cause of action means. And equally important, few of us know how causes of action interact with the concepts of rights, jurisdiction, and remedies. Professor John Preis takes up these important questions in his latest article. Read More.

Laurie R. Blank
In Response to Professor Oren Gross’ ‘The New Way of War: Is There a Duty to Use Drones?
Response to Oren Gross, The New Way of War: Is There a Duty to Use Drones?

For the past decade, drones—the remotely piloted aircraft the United States has used to launch missiles in conflicts and counterterrorism operations from Afghanistan to Libya and points in between—have taken center stage in a moral, legal, strategic, and political debate about the use of force against terrorists and insurgents. This debate has focused predominantly on the potential negative consequences of drones, such as the reduced accountability for the use of force, the geography of conflict, or civilian casualties, for example. In his thought-provoking and forward- looking article, The New Way of War: Is There a Duty to Use Drones?, Oren Gross flips this debate on its head and explores whether countries must use drones in the course of armed hostilities. Read More.

Teresa Drake
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’
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 sexual violence, creating an additional means of controlling and humiliating women in relationships. She argues cialis online au that using intimate images as a means of controlling women’s bodies, reputations and lives is just one of many destructive results that justify criminalizing such behavior. While her points are accurate, she skims over complexities of domestic violence when progressing to her argument that existing laws fail to adequately address the problem of revenge porn. Read More.

Robert W. Gomulkiewicz
In the Stewardship of Business Model Innovation
Response to Xuan-Thao Nguyen, In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law

Patent law scholars often criticize the Federal Circuit because they think it favors patentees. The Supreme Court has reinforced this scholarly critique by taking an usually large number of patent cases in recent years, often reversing the Federal Circuit and admonishing it to avoid patent law exceptionalism. The Federal Circuit’s perceived patent law exceptionalism motivated Professor Xuan-Thao Nguyen to write her article In the Name of Patent Stewardship: The Federal Circuit’s Overreach Into Commercial Law. Professor Nguyen’s concerns about damage to commercial law are not trifles. When it comes to the stewardship of our information economy, the laws that support the commercialization of inventions are just as important as the laws that govern the creation of inventions. Thus, commercial law needs tending just as much as patent law. Read More.

Alexander A. Boni-Saenz
Baselines in Trust Term Extension
Response to Reid Kress Weisbord, Trust Term Extension

Professor Reid Kress Weisbord’s article insightfully identifies what may be the next battleground in the rancorous war over the Rule Against Perpetuities: trust term extension. Seeking to take advantage of the abolition of the Rule in many states, trustees of irrevocable trusts settled before such a change in law might petition the court to extend the term of the trusts they administer, perhaps indefinitely. Professor Weisbord is rightly skeptical of this move, and he recommends a simple but elegant solution: prohibiting the use of modification doctrines to add beneficiaries not identified in the original trust document. Read More. 

Mark Fenster
Regulating in the Post-Koontz World
Response to Sean Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

Professor Nolon’s consequential focus in his article is the source of its strength, even though his predictive claims are difficult to assess because they are inherently speculative. The one thing we can know for sure is that neither the Court nor advocates on either side of the issue can predict with certainty what will happen—indeed, given the incredibly, wonderfully variable nature of local governments as sub-sub-national regulatory entities, we can only say with certainty that Koontz’s consequences will be complex, often unanticipated, and, literally, all over the map. Read More.

Jeffrey Riley
Potential Within the Architecture: Explaining the Debate Over the Construction of Social Media
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 analysis, but rather contribute a voice of explanation as to why such a world exists to begin with. The answer is hidden in the deeper layers of what social media actually is: By understanding the revolutionary DNA of social media, one can begin to understand its potential uses, and by understanding its potential uses, sociological principles can be applied to figure out why exactly someone would use such a tool for nefarious purposes, like posting unapproved pornographic photos of others. Read More.

Winston P. Nagan
An Essay and Comment on Oren Gross’, ‘The New Way of War: Is There a Duty to Use Drones?’
Response to Oren Gross, The New Way of War: Is There a Duty to Use Drones?

Professor Oren Gross has written a remarkably strong article in defense of the use of drones in the current national security challenge. This article is to be published just after the Obama administration has revealed that two hostages of the al-Qaeda terrorist group have been inadvertently killed in CIA-led drone strikes. These tragedies have made headline news and, at least, implicitly raise important questions about the strategy and tactics for fighting terrorism and the morality and basic ethics of the strategic use of drones to eliminate terrorist operatives. Professor Gross has written an important defense of the U.S. drone strategy. His paper provides much clarification on important questions regarding law and morality. The essential thrust of his paper is that the use of the drone replaces the earlier technology connected with pinpoint bombing of enemy targets. There is a vast difference between the two. No matter how much effort is put into the pinpoint bombing strategy, such use of force has extensive spatial consequences and additionally, will reproduce casualties as an incident of such application. Read More.

B.J. Jones
A Response to Professor Berger’s ‘In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl’
Response to Bethany R. Berger, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl

Professor Bethany R. Berger’s recent article, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl, takes a somewhat distrustful perspective on the Court’s decision. In that case a native father of a child born out of wedlock was not entitled to all of the protections afforded to native parents under the federal Indian Child Welfare Act (ICWA). The decision could be construed as being very limited in its scope and directing state courts not to engage in contortions of language in federal laws to protect the rights of putative fathers, whose rights to object to adoptions appear dubious under state law. Read More.

David O. Taylor 
Patent Stewardship, Choice of Law, and Weighing Competing Interests
Response to Xuan-Thao Nguyen, In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law

Many have criticized the Federal Circuit over the years for expanding its jurisdiction or applying its own law in inappropriate circumstances. Paul Gugliuzza, for example, recently argued that the Federal Circuit has wrongly expanded its jurisdiction “to protect and enhance its power relative to state courts,” and that it “has improperly leveraged choice-of- law doctrine to expand the scope of federal common law and restrict the scope of state contract law.” In this regard, Xuan-Thao Nguyen’s article, In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law, might be seen as “piling on”—simply more detailed evidence of overreaching by the nation’s patent court, which is troubling, but familiar. Read More.

Christopher Serkin
The Winners and Losers in Negotiating Exactions: A Response to Sean Nolon
Response to Sean Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

Land use law suffers from something of a split personality. On the one hand, zoning and land use controls represent the product of a planning process aimed at improving municipal design. Urban planners set forth aspirational goals that zoning and land use controls seek to achieve. On the other, modern land use practices tend to treat zoning as a framework for bargaining between developers and municipal officials. Some municipalities set aside large swaths of land in holding zones so that any development will require negotiation. And even where practices are not so explicit, most development projects of any significant size will require discretionary approvals that provide an opportunity for bargaining between developers and municipal officials. Read More.

Shelley Ross Saxer
To Bargain or Not to Bargain? A Response to ‘Bargaining for Development Post-Koontz’
Response to Sean F. Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

There are two major questions remaining after the U.S. Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District: 1) whether subjecting proposed exactions, not just imposed exactions, to Nollan and Dolan heightened scrutiny will chill negotiations between local governments and developers over whether a permit for a project with potential adverse externalities should be granted; and 2) what type of monetary fees will be subject to heightened scrutiny after Koontz held that monetary exactions, not just physical exactions, will be subject to the Nollan and Dolan test. In his excellent article, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government, Professor Sean F. Nolon addresses the first major question and identifies, but does not address, the second. Read More.

Barbara A. Atwood
A Response to Professor Berger’s ‘In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl
Response to Bethany R. Berger, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl

In her intriguing article about Adoptive Couple v. Baby Girl, Professor Bethany R. Berger argues that the Supreme Court “participated in a long-standing trend of using children to forward racial, gender, and economic agendas that violate the rights of their birth parents and, ultimately the interests of the children themselves.” On the one hand, she delivers an astute critique of the holdings and reasoning of Adoptive Couple, pointing out the Court’s missteps in interpreting the Indian Child Welfare Act of 1978 (ICWA). While I might have approached the analysis slightly differently, I agree with her core arguments and share her concern that the Court’s decision will undermine enforcement of ICWA. Read More.

Michael A. Olivas
In Response to Rafael I. Pardo’s The Undue Hardship Thicket: On Access to Justice, Procedural Noncompliance, and Pollutive Litigation in Bankruptcy
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 Pollutive Litigation in Bankruptcy. Second, I am resisting the temptation to footnote every point I make, and so resort to what is for me a radical task of not using my usual number of footnotes, in contrast to his nearly 500 (most of them heavily annotated and elaborated). There can be little doubt that Professor Pardo has done for student loan debt and its “Undue Hardship” (UH) provisions what Senator (née Professor) Elizabeth Warren did for consumer and family bankruptcy—turn it inside out, study its nooks and crannies, and explain its nuances and intricacies. Read More.

Robert J. Rhee
A Response to Professor Rose’s ‘Shareholder Proposals in the Market for Corporate Influence’
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. In this short response, I provide a few additional observations. My observations stem from a different rearrangement of the categories of shareholder proposals. Once the labels for the different shareholder proposals are rearranged, additional plausible insights follow. Read More.

Charlene D. Luke
Illuminating the Dark Matter of Intellectual Capital
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 broader, interdisciplinary context and to use the knowledge gained from that context to suggest specific reforms. In the process, Professor Kahng explores the definitional boundaries of “intellectual capital” and considers potential objections to capitalization of the costs of intellectual capital. As a result, Professor Kahng’s article fosters a richer, contextualized conversation about a significant shortcoming of the tax system. Read More.

Brooke D. Coleman
Easy Access to Loans, But What About Access to Justice?
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 narrative of how the resource disparities between creditor and debtor result in debtor gain. As Pardo explains, the debtor faces a stacked deck in a number of respects. Indeed, a difficult burden of proof, a complex test for carrying that burden, procedural infirmities, and an arguably vexatious litigant-creditor all combine to make just—let alone successful—litigation a near impossibility for debtors. The Undue Hardship Thicket carefully demonstrates how, like civil litigation at large, bankruptcy litigation risks disadvantaging those who are most marginalized, and thus, has negative implications for access
to justice. Read More.

Xavier Seuba
The Quantification of the Productive Inefficiencies of Patent Production
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 of patent protection, and that Hubbard seeks to render that calculation more accurate. Indeed, Hubbard’s article identifies factors that should be —but heretofore have not been—considered in an economic analysis of patent law: the positive influence of competition on productive efficiency and the opposite effect of some patent policies, laws, and practices. But Hubbard also notes that, unfortunately, despite the abundance of economic literature regarding patents, there exists a great deal of incertitude with regards to even their conventional economic effects. Read More.

Karen C. Burke
Comments on “Taxation of Intellectual Capital:” Better than Consumption-Tax Treatment?
Response to Lily Kahng, “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 measure “intellectual capital,” “a central driver of economic productivity and growth.” Within the framework of a normative income tax, Professor Kahng argues that businesses should be required to capitalize and amortize investments in a broad array of intangibles, including research and development, advertising, and employee-training expenses. Read More.

Laura I Appleman
Who Watches the Watchers? Judges, Guilty Pleas, and Outsider Review
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 Outcomes to Reframe Guilty Plea Adjudication, Professor Anne Traum argues that trial courts should take on the task of regulating guilty pleas by monitoring plea outcomes. But what Professor Traum never quite resolves is the always-tricky problem of motivating courts to do such self-correction. In other words, having trial courts regulate guilty pleas by monitoring plea bargains offers some hope for procedural equity, but ultimately does not go far enough. Read More.

Kenneth B. Nunn
Ideology, Gentile and Pretrial Attorney Speech: A Response to Professor Tarkington
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 criminal trial process? If so, how can attorney speech be regulated in ways that do not intrude on attorneys’ First Amendment rights or defendants’ right to a fair trial? Can a balance be struck between the Sixth Amendment right to a fair trial and the First Amendment right to free speech that does not impair the ability of either prosecutors or defense attorneys to function as advocates for their respective clients? These are the questions that Professor Margaret Tarkington sets out to answer in her article, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity. Read More.

Cassandra Burke Robertson
Low Sanctions, High Costs: The Risk to Democratic Freedom
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 of low or minimal sanctions to discourage unwanted (but not universally condemned) behavior can lead over time to a gradual increase in sanctions and a growing disconnect from citizens’ political preferences. This progression creates a risk of unjust application of the law and a fundamentally anti-democratic outcome that is resistant to repeal through the political process. Read More.

Gregory Dolin, M.D.
Googling Down the Cost of Low Sanctions
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 that a putative perpetrator will think twice before engaging in the frowned-upon conduct. It is thus unsurprising that we impose long jail terms for murder while limiting ourselves to moderate fines for speeding and jaywalking. It is equally not surprising, then, that we (thankfully) have more instances of speeding than of murder.
Read More.

Peter J. Henning
Dealing With Corporate Misconduct
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 quite hefty, and perhaps submit to outside monitoring. Upon announcement of the resolution of the case, a company can be expected to issue a contrite public statement committing itself to making a greater effort toward future compliance with the law. For particularly severe or high-profile cases, such as when the Department of Justice wants to show how tough it is on crime, a guilty plea by the organization may be required. Finally, prosecutors may require a company to alter its internal governance structure, perhaps by splitting the jobs of chief executive and chair of the board of directors or creating new reporting lines within the organization. Read More.

Manuel A. Utset
Self-Control Engineering
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.1 Professor Baer is concerned with both time-consistent (TC) and time-inconsistent (TI) misconduct. One of the important contributions of Professor Baer’s article is its careful analysis of opportunistic misconduct, particularly in contexts in which actors may have TC preferences or varying degrees of preference for immediate gratification. A second contribution is its analysis of the costs and benefits of various mechanisms for deterring TC and TI opportunistic behavior. Read More.

Larry A. DiMatteo
Questioning the Ubiquitousness, But Not the Value, of Arbitration Carve-outs
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 the use of standard or boilerplate arbitration clauses is prevalent. Despite their findings of the existence of customized dispute resolution clauses through the use of carve-outs and carve-ins, the more normative side of their analysis is of more fundamental importance—the abdication by lawyers in failing to customize important and ubiquitous clauses, such as arbitration and force majeure clauses. Read More.

Jeffrey L. Harrison
And Therefore . . . . : Comments on “Unbundling Procedure: Carve-Outs from Arbitration Provisions”
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, in a variety of contexts, make choices between arbitration and litigation based on the claims and remedies that are likely to be involved. In other words, the parties “carve out” from a general arbitration clause matters that will be litigated. For example, it appears the parties are more inclined to select the judicial process when property, as opposed to liability, rules are at stake. While the descriptive element of their effort is interesting, it is not clear what implications, if any, follow from that information. Or, it may be that they have gone a bit far in suggesting that courts should mimic the services available in private markets. Read More.

Clark D. Asay
Keeping Low Sanctions Low
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 given law, Manta argues that in many cases, low sanctions create a false sense of security. Indeed, in some instances low legal sanctions may be worse than high sanctions for a number of reasons: (1) they may make it easier to pass faulty laws in the first place; (2) these faulty laws then become increasingly difficult to eliminate; and (3) over time, the initially low legal sanctions grow into high sanctions either through incremental additions or simply through the way the laws are enforced. Read More.


Brandon L. Garrett
Rehabilitating Corporations
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, some of the largest companies now obtain deferred and non-prosecution agreements that permit them to avoid an indictment and a conviction. In deciding not to fully pursue such companies to a conviction, prosecutors emphasize how they can offer alternatives to prosecution in order to secure positive changes to compliance and ethics programs. Such structural reforms also implicate corporate governance structures, and can involve sustained interventions in the workings of a corporation. Lawrence A. Cunningham’s wonderful new article takes the provocative and counterintuitive position that prosecutors should care about rehabilitating corporate governance far more and not less. Read More.


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.
Read More.


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.
Read more.


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.
Read more.


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.
Read more.


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.
Read more.

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
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.
Read More.

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.
Read More.

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, Westlaw, and LexisNexis.

We welcome submissions from professors, practitioners, judges, and legislators. Responses should be a minimum of 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 Michael Balducci.

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