Governments and Legislation

The New Pornography Wars

Julie Dahlstrom

Abstract The world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. In response, as in the “pornography wars” of the 1970s and 1980s, lawyers and activists have turned to civil remedies and filed creative anti- trafficking lawsuits against MindGeek […]

The Secret Sauce: Examining Law Schools That Overperform on the Bar Exam

Christopher J. Ryan, Jr. & Derek T. Muller

Abstract Since 2010, law schools have faced declining enrollment and entering classes with lower predictors of success despite recent signs of improvement. At least partly as a result, rates at which law school graduates pass the bar exam have declined and remain at historic lows. Yet, during this time, many schools have improved their graduates’ […]

Affording The Franchise: Amendment 4 & The Senate Bill 7066 Litigation

Dalia Figueredo

Abstract Felon re-enfranchisement statutes that condition the restoration ofvoting rights on the payment of legal financial obligations have beenchallenged under the Fourteenth and Twenty-Fourth Amendments to theU.S. Constitution. To date, these challenges have been unsuccessfulbecause felons are not a protected class, disenfranchised felons do nothave a fundamental right to vote under existing case law, and […]

Are Good Deeds Being Punished?: Independent Charity Patient Assistance Programs and the Anti-Kickback Statute

John Hood

Abstract Largely funded by the pharmaceutical industry, Independent CharityPatient Assistance Programs (PAPs) dispense billions of dollars of aidannually to help financially vulnerable patients afford their prescriptiondrugs. Recently, these charitable entities and their drug company donorshave faced mounting legal scrutiny for allegedly funneling illegalkickbacks to Medicare beneficiaries. This Note examines IndependentCharity PAPs and the issues they […]

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 […]

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 […]

A Statutory National Security President

Amy L. Stein

Abstract Not all presidential power to address national security threats stems from the Constitution. Some presidential national security powers stem from statute, creating complicated questions about the limits of these powers delegated to the President by Congress. Scholars who have explored ways to achieve the proper balance between responsiveness and accountability have generally focused on […]

Why Congress Matters: The Collective Congress in the Structural Constitution

Written by: Neomi Rao

Abstract Congress currently operates in the shadow of the administrative state. This Article provides a modern reconsideration of why Congress still matters by examining the “collective Congress” within the text, structure, and history of the Constitution. Like the unitary executive, the collective Congress is a structural feature of the Constitution’s separation of powers. With deep […]

By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care

Written by: Gary Lawson & Guy I. Seidman

Abstract Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process of Law Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something functionally very similar to substantive due process, however, is easily justifiable […]

William C. Matthews, Aventura Management, LLC v. Spiaggia Ocean Condominium Association: Condominium Associations Beware

In late January 2013, the Third District Court of Appeal sent shockwaves throughout the real estate community with regards to condominium associations’ rights as unit owners. In AventuraManagement, LLC v. Spiaggia Ocean Condominium Association1 (Spiaggia), the appellate court interpreted Florida Statute § 718.1162 in an unprecedented way. The court held that if a condominium association […]

Karl Gruss, Freedom of Information Act and Federal Licensing Procedures: Invoking Exemption 7(F) to Protect Examination Materials

The United States Supreme Court’s 2011 decision in Milner v. Department of the Navy shut the door on an expansive interpretation of one of the nine enumerated exemptions to the public disclosure requirements mandated under the Freedom of Information Act. No longer can federal agencies seek cover behind the judicially crafted interpretation of Exemption 2 […]

Ellen English, “Camels Agree with your Throat" and Other Lies: Why Graphic Warnings are Necessary to Prevent Consumer Deception

The government’s latest attempt to protect consumers from the perils of tobacco use is in jeopardy. In 2009, Congress enacted the Family Smoking Prevention and Tobacco Control Act, which requires cigarette advertisements and packages to bear nine new textual health warnings and gives the FDA authority to regulate tobacco products. In 2011, in compliance with the Act, the FDA issued […]

Robert J. Pushaw, Jr., The Paradox of the Obamacare Decision: How Can the Federal Government have Limited Unlimited Power?

National Federation of Independent Business v. Sebelius, the Supreme Court’s decision upholding the landmark Patient Protection and Affordable Care Act (ACA or “Obamacare”), sets forth the most important judicial examination of constitutional power since the New Deal era. The political and media frenzy over the Obamacare case has obscured its actual legal analysis and larger constitutional implications, which warrant more reflective […]

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 […]

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 […]

Chad Flanders, Pardons and the Theory of the “Second-Best”

This Article explains and defends a “second-best” theory of pardons. Pardons are second-best in two ways. First, pardons are second-best because they represent, in part, a response to a failure of justice: the person convicted was not actually guilty, or he or she was punished too harshly, or the punishment no longer fits the crime. In the familiar analogy, pardons […]

Amy Widman, The Rostrum Principle: Why the Boundaries of the Public Forum Matter to Statutory Interpretation

There is a section of dicta in the recent Supreme Court decision on health care reform that might portend new ground, although not in Commerce Clause jurisprudence. Rather, in his dissent, Justice Antonin Scalia did a curious thing for those interested in statutory interpretation: He cited an op-ed in The New York Times that quoted […]

Kelly M. Gay, Hunger, Food Prices, and the Food Safety Modernization Act: Balancing Physical Safety and Food Security

The Food and Drug Administration (FDA) Food Safety Modernization Act (Modernization Act) was signed into law by President Barack Obama on January 4, 2011. The goal of the Act is to reform the United States’ food safety regulations that attempt to safeguard the American public from foodborne illness. However, America is also in the middle of a hunger crisis—millions of […]

Stephen McCullers, A Dangerous Servant and a Fearful Master: Why Florida's Prescribed Fire Statute Should be Amended

Fire will not be denied its opportunity to burn through Florida’s forests. The citizens of Florida, however, can accept the responsibility of deciding how the forest will burn. Fire can be purposefully ignited under exact weather conditions, acting as a controlled but dangerous servant with a slim chance of escape or harm. Or, if Floridians […]

Hanah Metchis Volokh, Constitutional Authority Statements in Congress

“Congress has the power to enact this legislation pursuant to the following: This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 2 of the United States Constitution.” “Congress has the power to enact this legislation pursuant to the following: The Katie Sepich Enhanced DNA Collection Act is […]

Jacy Owens, A Progressive Response: Judicial Delegation of Authority to Federal Probation Officers

Federal probation officers supervise millions of offenders who must each comply with a multitude of probation conditions. These officers need enough flexibility to deal with the evolving needs of each offender, without having to clog the court system with repeated requests for modifications. Yet federal courts differ in the amount of discretionary authority they grant […]

Abigail R. Moncrieff, Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Nonfundamental Liberties

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts‘ incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect […]

Lisa Heinzerling, Introduction: Climate Change at EPA

64 Fla. L. Rev. 1 (2012)| With the demise of climate legislation in Congress, and the Supreme Court’s rejection of climate-related lawsuits brought under federal common law, rapt attention has turned to the Environmental Protection Agency’s (EPA) efforts to bring greenhouse gases into the regulatory fold. Certainly, as the works in this special issue of […]

Caycee Hampton, Confirmation of a Catch-22: Glik V. Cunniffe and the Paradox of Citizen Recording

63 Fla. L. Rev. 1549 (2011)| | | | On October 1, 2007, Simon Glik observed several police officers arresting a young man on the Boston Common. Concerned that the officers were employing excessive force, Glik began to record the arrest with his cell phone. After successfully arresting the young man, an officer asked Glik […]

Kathryn A. Kimball, Losing our Soul: Judicial Discretion in Sentencing Child Pornography Offenders

63 Fla. L. Rev. 1515 (2011)| | | | Child pornography offenders capitalize on the vulnerability of children and find pleasure in their victims’ humiliation. In United States v. Irey, the defendant sadistically raped, sodomized, and tortured more than fifty prepubescent girls and then broadcast this abuse across the Internet; yet the court characterized Irey […]

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

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

Courtney Gaughan, Some More Watters, Please: The Dodd-Frank Act's New Preemption Standards Lighten Consumers' Wallets

63 Fla. L. Rev. 1459 (2011)| | | | The Dodd-Frank Wall Street Reform and Consumer Protection Act precipitates innumerable changes that will both directly and indirectly shape the future of the financial industry. This Note addresses two important subsets of the Dodd-Frank Act- Section 1044 and Section 1046-which vitiate the authority of federally chartered […]

Frances H. Foster, Should Pets Inherit?

63 Fla. L. Rev. 801 (2011)|  | | ARTICLE :: On August 20, 2007, billionaire hotelier Leona Helmsley died, survived by her brother, four grandchildren, twelve great-grandchildren, and her beloved companion of eight years, a white Maltese dog named Trouble. One week later came news that shocked the world. Helmsley left $12 million to Trouble.

Kit Johnson, The Wonderful World of Disney Visas

63 Fla. L. Rev. 915 (2011)|  | | ARTICLE :: International workers play an important role in perpetuating the carefully crafted fantasy that to visit the Walt Disney World Resort in Orlando, Florida is to be transported to far-off destinations around the globe. This Article examines how Disney has filled its need for these workers in […]

R. Benjamin Lingle, Post-Kelo Eminent Domain Reform: A Double-Edged Sword for Historic Preservation

63 Fla. L. Rev. 985 (2011)|  | | NOTE :: The preservation of historic structures provides communities across the nation with both a source of pride in our national history and a window through which to view that history. Governments’ powers of eminent domain have long served as a tool for historic preservation; however, eminent domain […]

Nathan A. Frazier, Amending for Justice's Sake: Codified Disclosure Rule Needed to Provide Guidance to Prosecutor's Duty to Disclose

63 Fla. L. Rev. 771 (2011)| | | | ABSTRACT :: “I wouldn’t wish what I am going through on anyone,” Senator Ted Stevens commented after losing his seat in the United States Senate on November 18, 2008. Senator Stevens lost the race largely because a criminal conviction damaged his reputation. After Senator Stevens endured […]

Wendy F. Hensel & Leslie E. Wolf, Playing God: The Legality of Plans Denying Scarce Resources to People with Disabilities in Public Health Emergencies

63 Fla. L. Rev. 719 (2011)| | | | ABSTRACT :: Public health emergencies can arise in a number of different ways. They can follow a natural disaster, such as Hurricane Katrina, the 2004 tsunami, and the recent earthquakes in Haiti and Chile. They may be man-made, such as the September 11 attacks and the […]

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

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

Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of Chicago

63 Fla. L. Rev. 487 (2011)| | | | INTRODUCTION :: Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they […]

Steven G. Calabresi & Nicholas Terrell, The Number of States and the Economics of American Federalism

63 Fla. L. Rev. 1 (2011)| | | | INTRODUCTION :: In 1789, it was possible to speak of a federation of distinct states joined together for their mutual advantage, but today, it is rather the nation that is divided into subnational units. What caused this shift in focus from the states to the federal […]

Peter Nicolas, The Lavender Letter: Applying the Law of Adultery to Same Sex Couples and Same Sex Couples

63 Fla. L. Rev. 97 (2011)| | | | INTRODUCTION :: In the political and legal debate over same-sex marriage, references to the rights (or benefits or privileges) and responsibilities (or burdens or obligations) associated with marriage constitute a key weapon in the rhetorical battle. Most of the focus, however, has been on the “rights” […]

Sung Hui Kim, Naked Self-Interest? Why the Legal Profession Resists Gatekeeping

63 Fla. L. Rev. 129 (2011)| | | | ABSTRACT :: This Article asks and answers the following question: why does the legal profession resist gatekeeping? Or, put another way, why do lawyers resist duties that require them to act to avert harm to their corporate client, its own shareholders, and-possibly-the capital markets? While acknowledging […]

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

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

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

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

Anita Bernstein, Civil Rights Violations – Broken Windows: De Mimis Curet Lex

62 Fla. L. Rev. 895 (2010) | | | | ABSTRACT :: Civil rights violations that appear relatively slight may warrant judicial redress despite their small size; some of them point up important principles. Leaving these violations unremedied may contribute to an ambient lawlessness that can foster bigger harms. A small infringement in this respect […]

Creola Johnson, Renters Evicted en Masse: Collateral Damage Arising from the Subprime Foreclosure Crisis

62 Fla. L. Rev. 975 (2010) | | | | INTRODUCTION :: Across the country, innocent renters are becoming victims of their landlords’ inability to avoid foreclosure on their rental properties. Many are not receiving the legal rights that they are entitled to under federal and state law. For example, Marjorie Benedum and her husband […]

Melanie B. Leslie, The Wisdom of Crowds? Groupthink and Nonprofit Governance

62 Fla. L. Rev. 1179 (2010)| | | | ABSTRACT :: Scandals involving nonprofit boards and conflicts of interest continue to receive considerable public attention. Earlier this year, for example, musician Wyclef Jean’s Yele Haiti charity became the target of intense criticism after the charity disclosed that it had regularly transacted business with Jean and […]

Andrew S. Brown, Breaking Up and Making Out (Rich): Recommendations for Revision of the Bankruptcy Code Provisions Governing Break-Up Fees Used by Stalking Horse Bidders in § 363 Bankruptcy Asset Sales

62 Fla. L. Rev. 1463 (2010) | | | | INTRODUCTION :: Since December 2007, the United States has suffered through a “Great Recession.” The stock market had plummeted more than 40% from its peak as investors pulled their money from investments seeking safety under their mattresses. Companies and individuals have struggled as bankruptcy filings […]

David G. Owen, Bending Nature, Bending Law

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

Usha Rodrigues, From Loyalty to Conflict: Addressing Fiduciary Duty at the Officer Level

61 Fla. L. Rev. 1 (2009) | | | | ABSTRACT :: Conflicts of interest are the quintessential agency cost-the constant, lurking danger that agents may seek their own personal gain, rather than the good of the corporation. Yet many corporate employees lack knowledge as to exactly what constitutes a conflict of interest. This ignorance […]

Heather Howdeshell, Didn't my General Contractor Pay You? Subcontractor Construction Liens in Residential Construction Projects

61 Fla. L. Rev. 151 (2009) | | | | INTRODUCTION :: During the past eight years, the housing market boom carried the United States economy out of the 2000 recession. Due in part to low interest rates for mortgages and home-equity loans, Americans have constructed millions of custom-built homes and renovated their current homes […]

Sarah Harding, Perpetual Property

61 Fla. L. Rev. 285 (2009) | | | | INTRODUCTION :: Property interests, unlike contracts, tend to adhere to a limited set of specific forms-the numerus clausus principle. Much scholarship in the past decade has focused on this distinction in an attempt to understand both the nature of and the reasons for the limitation […]

Patricia Alten, Gina: A Genetic Information Nondiscrimination Solution in Search of a Problem

61 Fla. L. Rev. 379 (2009) | | | | ABSTRACT :: “Genetic discrimination is unfair to workers and their families. It is unjustified-among other reasons, because it involves little more than medical speculation. A genetic predisposition toward cancer or heart disease does not mean the condition will develop. To address the potential use of […]

Christine A. Klein, Mary Jane Angelo, & Richard Hamann, Modernizing Water Law: The Example of Florida

61 Fla. L. Rev. 403 (2009) | | | | INTRODUCTION :: At the beginning of the twenty-first century, the Earth, with its diverse and abundant life forms, including over six billion humans, is facing a serious water crisis. All the signs suggest that it is getting worse and will continue to do so, unless […]

Dayna B. Royal, Take Your Gun to Work and Leave It in The Parking Lot: Why The OSH Act Does Not Preempt State Guns-At-Work Laws

61 Fla. L. Rev. 475 (2009) | | | | INTRODUCTION :: Two robbers entered an Alabama restaurant and forced customers and employees into a walk-in refrigerator at gunpoint. Fortunately, one of the customers, legally armed with his own pistol, shot the robbers before any hostage was injured. In New York City, a fifty-six year-old […]

David A. Karp, Why Justice Thomas Should Speak at Oral Argument

61 Fla. L. Rev. 611 (2009) | | | | INTRODUCTION :: The oral argument before the United States Supreme Court in Morse v. Frederick began at 10:03 a.m. in typical fashion, like a high-speed game of chess. Forty-two seconds into the argument, Justice Anthony Kennedy cut off the advocate in mid-sentence. For the next […]

Robert Weisberg, Tragedy, Skepticism, Empirics, and the MPCS

61 Fla. L. Rev. 797 (2009) | | | | INTRODUCTION :: I argue here that an important implicit theme of the Model Penal Code: Sentencing (MPCS) Draft (Draft) is what I will call modern tragic skepticism about empirical proof in legal reform. By an admittedly somewhat stretched reading, I will infer from the Draft […]

Akhil Reed Amar, Bush, Gore, Florida, and the Constitution

61 Fla. L. Rev. 945 (2009) | | | | INTRODUCTION :: Ten years ago this week, Dunwody Lecturer Cass Sunstein stood at this podium and offered some thoughts about the then-recent impeachment of President Clinton. Professor Sunstein titled his remarks Lessons from a Debacle: From Impeachment to Reform. Today I shall share with you […]

Richard L. Hasen, Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar

61 Fla. L. Rev. 979 (2009) | | | | INTRODUCTION :: Akhil Amar begins his impressive Dunwody Lecture by questioning whether there “are any new things left to say about the Bush-Gore episode.” 1 It is a legitimate question to ask, given the torrent of scholarship since the 2000 Florida debacle. In some ways, […]

Ellen D. Katz, From Bush v. Gore to Namudno: A Response to Professor Amar

61 Fla. L. Rev. 991 (2009) | | | | INTRODUCTION :: In his Dunwody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, […]

Nelson Lund, Bush v. Gore at The Dawning of the Age of Obama

61 Fla. L. Rev. 1001 (2009) | | | | INTRODUCTION :: As Akhil Amar reminds us, hundreds of law professors denounced the Bush v. Gore majority as propagandists who suppressed the facts and used their power “to act as political partisans, not judges of a court of law”; as he also notes, a few […]

Vincent J. Galluzzo, When “Now Known or Later Developed” Fails its Purpose: How P2P Litigation Has Turned the Distribution Right Upside-Down

61 Fla. L. Rev. 1165 (2009) | | | | INTRODUCTION :: In 1999, a Northeastern University freshman needed only a quiet dorm room to design the catalyst that would spark the peer-to-peer (P2P) downloading phenomenon. That freshman, the then-teenaged Shawn Fanning, spawned the now-infamous computer program Napster-a program that facilitated the free transfer of […]

Allison Sirica, A Great Gamble: Why Compromise Is the Best Bet to Resolve Florida's Indian Gaming Crisis

61 Fla. L. Rev. 1201 (2009) | | | | INTRODUCTION :: “Indian gaming is a national multi-billion dollar enterprise and growing.” Even in 2008, amidst an economic downturn, the revenues generated by the tribal gaming industry continued to show growth. In 2008 alone, Indian gaming generated $ 26.7 billion and accounted for a little […]

Rosalie Berger Levinson, Reining in Abuses of Executive Power through Substantive Due Process

60 Fla. L. Rev. 519 (2008) | | | | ABSTRACT :: Although substantive due process is one of the most confusing and controversial areas of constitutional law, it is well established that the Due Process Clause includes a substantive component that “bars certain arbitrary wrongful government actions ‘regardless of the fairness of the procedures […]

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

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

Emily S. Wilbanks, The Murder Rule that Just Won't Die: The Abolished Year-And-A-Day Rule Continues to Haunt the Florida Courts

60 Fla. L. Rev. 735 (2008) | | | | INTRODUCTION :: On October 21, 1986, a two-month-old baby girl was admitted to a hospital in Pasco County, Florida. Baby Christina Ann Wells was unresponsive, was suffering from seizures, and needed assistance to breathe. Doctors observed large bruises on Christina’s head, including thumbprints on her […]

Stephen A. Higginson, Constitutional Advocacy Explains Constitutional Outcomes

60 Fla. L. Rev. 857 (2008) | | | | INTRODUCTION :: In oral argument in Baker v. Carr, Attorney Z.T. Osborn, Jr., on behalf of Tennessee voters arguing that the U.S. Supreme Court should hold legislative apportionment a justiciable issue, exclaimed that “the motto of the Supreme Court of Tennessee is Fiat justicia ruat […]

Lindsay Roshkind, Interpreting I.R.C. § 67(e): The Supreme Court's Attempt to Nail Investment Advisory Fees to the "Floor"

60 Fla. L. Rev. 961 (2008) | | | | TEXT :: In the process of statutory interpretation, a court must determine “whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. [The court’s] inquiry must cease if the statutory language is unambiguous and the […]

Honorable William H. Pryor Jr., The Perspective of a Junior Circuit Judge on Judicial Modesty

60 Fla. L. Rev. 1007 (2008) | | | | TEXT :: I appreciate the invitation to deliver the Dunwody Lecture this year, and I am grateful that this occasion has allowed me to visit, for the first time, one of the premier law schools in this Circuit and our nation. The Levin College of […]

Verity Winship, Fair Funds and the SEC's Compensation of Injured Investors

60 Fla. L. Rev. 1103 (2008) | | | | ABSTRACT :: The Fair Fund provision of Sarbanes-Oxley allows the SEC to distribute money penalties to injured investors, heralding a new compensatory role for the agency. The SEC has announced that it will direct money to injured investors whenever possible, but has not articulated clear […]

William A. Drennan, The Patented Loophole: How Should Congress Respond to this Judicial Invention?

59 Fla. L. Rev. 229 (2007) | | | | INTRODUCTION :: An IRS spokesperson “questioned whether the [Patent Office] staff has adequate background in tax law . . . to properly rule on those patent applications [for tax strategies].” In response, a Patent Office spokesperson said, “The [Patent Office] has a long tradition of […]

Sandra Zellmer, A Tale of Two Imperiled Rivers: Reflections from a Post-Katrina World

59 Fla. L. Rev. 599 (2007) | | | | INTRODUCTION :: Let the river run; let all the dreamers wake the nation. Last year, hundreds of thousands of residents of the lower Mississippi River basin were forced to flee Hurricane Katrina. Having scattered like leaves before the gale-force winds that pounded the Gulf Coast, […]

Simon A. Rodell, Plumbing in the Boardroom: Plugging Boardroom Leaks through a Good Faith Duty of Confidentiality

59 Fla. L. Rev. 631 (2007) | | | | INTRODUCTION :: On January 24, 2005, the Wall Street Journal published a front-page article detailing confidential boardroom discussions at Hewlett-Packard’s (H-P) annual board meeting. The article described, in explicit detail, discussions about granting three named senior executives more authority over day-to-day operations of the company […]

Jason Marques, To Bear a Cross: The Establishment Clause, Historic Preservation, and Eminent Domain Intersect at the Mt. Soledad Veterans Memorial

59 Fla. L. Rev. 829 (2007) | | | | INTRODUCTION :: High above San Diego, a solitary Latin cross casts its shadow over the picturesque coastline of Southern California. The cross, a towering icon of concrete and faith, is encircled by several massive walls of granite into which thousands of names are meticulously carved. […]

Jessica Furst, Money and Politics: Will Expenditure Limits Take Candidates out of the Money Race And Put Them Back in the Office?

59 Fla. L. Rev. 873 (2007) | | | | INTRODUCTION :: On March 4, 1897, William McKinley capped a prominent career in public service when he became America’s twenty-fifth President. Perhaps most onlookers attributed the victory to McKinley’s character, intellect, or years of political experience. However, those watching a bit closer may have correctly […]

Natalie Liem, Mean What You Say, Say What You Mean: Defining the Aggravated Felony Deportation Grounds to Target More than Aggravated Felons

59 Fla. L. Rev. 1071 (2007) | | | | INTRODUCTION :: Jose Rodriguez is one of the lucky ones. Rodriguez, a legal permanent resident of the United States since 1990, was arrested in May 2003 for possession of less than one gram of cocaine. Rodriguez pleaded no contest and was sentenced to probation. Nearly […]

Brandon Faulkner, Hacking into Data Breach Notification Laws

59 Fla. L. Rev. 1097 (2007) | | | | INTRODUCTION :: On March 23, 2007, a news agency announced that the police department in Gainesville, Florida, arrested six individuals on charges that they had stolen credit card data from a corporation’s database and purchased more than $ 8 million in gift cards and electronics […]

Sandra Day O'Connor, Remarks on Judicial Independence

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

Mark C. Weber, Reflections on the New Individuals with Disabilities Education Improvement Act

58 Fla. L. Rev. 7 (2006) | | | | INTRODUCTION :: The Individuals with Disabilities Education Improvement Act, Orwellian title and all, received its presidential signature on December 3, 2004. The Act is already fully in effect, and the United States Department of Education proposed regulations to implement it on June 21, 2005. Although […]

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

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

John H. Rains IV, Construction Law: Enforcing the Notice and Filing Time Requirements of "Florida's Little Miller Act"-An Adventure in Statutory Construction

58 Fla. L. Rev. 425 (2006) | | | | TEXT :: Respondent, a materials supplier, sought payment from bonds issued by Petitioner, a surety, for materials Respondent supplied for the construction of a public highway. After the subcontractor and general contractor failed to pay Respondent and both filed for bankruptcy, Respondent looked to Petitioner’s […]

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

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

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

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

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

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

Jessica C. Furst, Election Law: "Three's a Crowd": Supreme Court Protection for the Two-Party System

58 Fla. L. Rev. 921 (2006) | | | | TEXT :: Oklahoma’s semiclosed primary law permits a political party to invite voters registered as Independent to vote in that party’s primary election. The Libertarian Party of Oklahoma (LPO) notified state election officials of its intent to open its primary to all voters, regardless of […]

Nicolas Hamann, Florida Constitutional Law: Reducing Legislative Discretion: A Clearly Unclear Application of Expressio Unius

58 Fla. L. Rev. 935 (2006) | | | | TEXT :: The Opportunity Scholarship Program (OSP) provided public school students with the option of transferring to either an eligible private school or to another public school that met certain academic requirements. If the student chose a private school, the State would then issue a […]

Jason Marques, Florida Constitutional Law: Circumscribing Legislative Authority in The Absence of a Clear Prohibition

58 Fla. L. Rev. 957 (2006) | | | | TEXT :: The Opportunity Scholarship Program (OSP), a state-funded, parent- choice voucher system, was designed to provide private school scholarships to students enrolled in certain Florida public schools. Upon its enactment in 1999, Respondents assailed the OSP as facially defective under both the state and […]

Steven J. Wernick, In Accordance with a Public Outcry: Zoning Out Sex Offenders through Residence Restrictions in Florida

58 Fla. L. Rev. 1147 (2006) | | | | INTRODUCTION :: On January 11, 2006, William Smith Jr., a sixty-five-year-old convicted sex offender, moved into a small wooden house behind a day-care center in Ocala, Florida. His housewarming, however, was short-lived. The day after Smith moved in, local police officers arrived at his house […]

Patrick M. Garry, Religious Freedom Deserves more than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion

57 Fla. L. Rev. 1 (2005) | | | | INTRODUCTION :: Some of the earliest American colonies began as havens for religious believers. Religious institutions operated nearly the entire educational system in eighteenth-century America. The first liberty mentioned in the Bill of Rights is religious freedom. During the eighteenth century, Congress consistently permitted the […]

Alan E. Garfield, Protecting Children from Speech

57 Fla. L. Rev. 565 (2005) | | | | INTRODUCTION :: The notion that children need to be sheltered from inappropriate speech long predates Janet Jackson’s “wardrobe malfunction” or Bono’s expletive-enhanced acceptance of a Golden Globe. Plato expressed concern about youths’ impressionable minds 2300 years ago, stressing that the tales the “young first hear […]

Marisa Lopez, Professional Responsibility: Tortured Independence in the Office of Legal Counsel

57 Fla. L. Rev. 685 (2005) | | | | INTRODUCTION :: “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” Abu Ghraib is one of the world’s most notorious prisons. Under Saddam Hussein, it was the sight of atrocious acts of […]

Kevin M. Shuler, Is the Endangered Species Act Endangered in the Age of Strict Federalism? A Florida Perspective on the Recent Commerce Clause Challenges to the ESA

57 Fla. L. Rev. 1135 (2005) | | | | INTRODUCTION :: Suppose that a ten-million-dollar development project in Levy County was suddenly stymied by the discovery of a nest of Florida salt marsh voles. Such a delay could endanger a project bringing much-needed jobs to one of Florida’s poorest counties. Despite existing in only […]

Laurie Reynolds, Taxes, Fees, Assessments, Dues, And The "Get What You Pay for" Model of Local Government

56 Fla. L. Rev. 373 (2004) | | | | INTRODUCTION :: The economic gap between affluent suburbia and the central city has recently received widespread attention in the state and local government law literature. Articles by prominent scholars representing a broad range of doctrinal approaches have coalesced around a consensus that the current concentration […]

Janelle A. Weber, The Spending Clause: Funding a Filth-Free Internet or Filtering out the First Amendment?

56 Fla. L. Rev. 471 (2004) | | | | TEXT :: The Children’s Internet Protection Act (CIPA) sets conditions on public libraries’ receipt of federal financial assistance for Internet access. Under CIPA, libraries must install filters on all of their Internet-connected computers to help block obscene and pornographic images and prevent minors from accessing […]

Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887

56 Fla. L. Rev. 541 (2004) | | | | INTRODUCTION :: Electoral vote counting is the oldest activity of the national government and among the oldest questions of constitutional law. It was Congress’s first task when a quorum appeared in the nation’s new legislature on April 6, 1789. It has happened every four years […]

Stephen B. Presser, A Conservative Comment on Professor Crump

56 Fla. L. Rev. 789 (2004) | | | | INTRODUCTION :: My assignment was to comment on Professor Crump’s article from a conservative perspective, to complement the response to his article from Dean Dennis Shields, who had been instrumental in administering the University of Michigan School of Law’s affirmative action policies approved in Grutter […]

Winston P. Nagan & Craig Hammer, Patriotism, Nationalism, and the War on Terror: A Mild Plea in Avoidance

56 Fla. L. Rev. 933 (2004) | | | | INTRODUCTION :: “Terrorism is a global menace which clearly calls for global action. Individual actions by Member States, whether aimed at State or non-state actors, cannot in themselves provide a solution. We must meet this threat together.” -Kofi Annan “Major Strasser has been shot. Round […]

David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures

56 Fla. L. Rev. 1051 (2004) | | | | INTRODUCTION :: Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities. In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement […]