Digital Commons Network^™

The Conflict Between The Religious Freedom Restoration Act And Title Vii Of The Civil Rights Act Of 1964, Sara K. Finnigan

Florida State University Law Review

No abstract provided.

Companies As Commodities, Danielle D'Onfro

Florida State University Law Review

Like copper, corn, or crude oil, companies increasingly trade like commodities. Some investors-certain holders of debt, activist shareholders, and controlling shareholders, especially private equity funds-are focused solely on returns. In practice, this means that they care about the fate of the companies in which they invest no more than they care about the fate of any tonne of copper, bushel of corn, or oil barrel they happen to trade. These investors are so immune to reputational concerns that they will even prefer that the companies in which they invest fail if failure maximizes their return on investment. This Article identifies …

Weaponizing The Ballot, Derek T. Muller

Florida State University Law Review

State legislatures are considering passing laws to prevent presidential candidates from appearing on the ballot if they fail to disclose their tax returns. These proposals exceed the states' power under the Elections Clause and the Presidential Electors Clause. States have no power to add qualifications to presidential or congressional candidates. But states do have constitutional authority to regulate the manner of holding elections and to direct the manner of appointing presidential electors. "Manner" regulations that relate to the ballot are those that affect the integrity and reliability of the electoral process itself or that require a preliminary showing of substantial …

The Impact Of Autonomous Vehicles On Urban Land Use Patterns, Gregory M. Stein

Florida State University Law Review

Autonomous vehicles are coming. The only questions are how quickly they will arrive, how we will manage the years when they share the road with conventional vehicles, and how the legal system will address the issues they raise. This Article examines the impact the autonomous vehicle revolution will have on urban land use patterns. Autonomous vehicles will transform the use of land and the law governing that valuable land. Automobiles will drop passengers off and then drive themselves to remote parking areas, reducing the need for downtown parking. These vehicles will create the need for substantial changes in roadway design. …

Privacy Injuries And Article Iii Concreteness, Peter C. Ormerod

Florida State University Law Review

The Supreme Court's 2016 decision in Spokeo, Inc. v. Robins requires federal courts to investigate the "concreteness" of a plaintiff's injury, even after Congress has recognized the injury by statute. Spokeo's concreteness discussion is a confusing mixture of several distinct considerations, and there is little rhyme or reason to how the lower courts have interpreted and applied Spokeo to other statutorily authorized injuries. This Article identifies four distinct informational injuries in the Court's past cases: injuries arising from the withholding, acquiring, using, and disseminating of information. To avoid Spokeo's mistakes, federal courts should give binding deference to Congress's decision to …

Facilitating Access To Cross-Border Supplies Of Patented Pharmaceuticals: The Case Of The Covid-19 Pandemic, Frederick M. Abbott

Scholarly Publications

The COVID-19 pandemic has brought into stark relief the gaps in global preparedness to address widespread outbreaks of deadly viral infections. This article proposes legal mechanisms for addressing critical issues facing the international community in terms of providing equitable access to vaccines, treatments, diagnostics, and medical equipment. On the supply side, the authors propose the establishment of mandatory patent pools ('Licensing Facilities') on a global or regional, or even national basis, depending upon the degree of cooperation that maybe achieved. The authors also discuss the importance of creating shared production facilities. On the demand side, the authors propose the establishment …

A Framework For The Efficient And Ethical Use Of Artificial Intelligence In The Criminal Justice System, Dan Hunter, Mirko Bagaric, Nigel Stobbs

Florida State University Law Review

Machine learning techniques are transforming the manner in which much of the legal system works, and criminal justice is the area which will be most fundamentally changed. Given the fundamental rights and interests at stake in the criminal justice system, this is also the field where the unthinking application of artificial intelligence ("AI") is most troubling, and where there is the greatest threat to individual rights and the likelihood of unanticipated damage to the rule of law. These problems will occur (and are occurring) throughout the criminal justice system: from data-driven predictive policing systems in the criminal investigation process, through …

Against The Alleged Insufficiency Of Statistical Evidence, Sam Fox Krauss

Florida State University Law Review

No abstract provided.

Limiting Florida's Constitution Revision Commission, Christopher S. Emmanuel

Florida State University Law Review

Every twenty years, Florida's Constitution mandates the establishment of the Constitution Revision Commission, a thirty-seven-member body that has been the author of fifteen successful changes to Florida's Constitution since 1998. The 2018 Constitution Revision Commission, or "CRC," proposed eight amendments, covering seventeen unique policy areas, seven of which were ultimately approved of by Florida voters. Despite being an efficient way to amend Florida's Constitution, the CRC has very few checks on its considerable power. Therefore, instead of waiting until the next CRC in 2038 to consider its purpose and structure, this paper outlines the CRC, discusses its utility, and suggests …

"Disingenuous And Somewhat Deplorable" A Look At Hospitals' Use Of Healthcare-Provider Liens To Reap A Windfall, Bryce Talbot, William Sjostorm

Florida State University Law Review

No abstract provided.

Osha Liability In Tort And The Threat Of The Multi-Employer Doctrine, Joseph Zavoral

Florida State University Law Review

No abstract provided.

The New Maternity, Courtney Megan Cahill

Scholarly Publications

Constitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers.

Constitutional law's …

Stretching Human Laws To Apply To Machines: The Dangers Of A "Colorblind" Computer, Zach Harned, Hanna Wallach

Florida State University Law Review

Automated decision-making has become widespread in recent years, largely due to advances in machine learning. As a result of this trend, machine learning systems are increasingly used to make decisions in high-stakes domains, such as employment or university admissions. The weightiness of these decisions has prompted the realization that, like humans, machines must also comply with the law. But human decision- making processes are quite different from automated decisionmaking processes, which creates a mismatch between laws and the decision makers to which they are intended to apply. In turn, this mismatch can lead to counterproductive outcomes. We take antidiscrimination laws …

Measles, Chickenpox, And Other Preventable Diseases: Why Stricter Vaccine Exemptions Are A Must-Proposed Legislation For Stricter Vaccine Exemption Standards, Eleanor H. Sills

Florida State University Law Review

The outbreak of measles in 2019 was the largest measles outbreak since the Centers for Disease Control and Prevention declared it eliminated in 2000. With measles and other vaccine-preventable diseases on the rise, there is growing concern that vulnerable populations will be exposed to these diseases, which can lead to death. One major factor in this increase is the lackadaisical vaccine exemption policies that are implemented in the United States. If vaccine exemption policies were more like those of states that have lower exemption rates and included some inquiry into the sincerity and genuineness of the requesting parent's religious beliefs, …

The Federal Estate Tax Exemption And The Need For Its Reduction, Jay A. Soled

Florida State University Law Review

One of the central components of the Nation's transfer tax system is the federal estate tax exemption. This is the amount that taxpayers can pass free of transfer tax imposition. While over the last 100 years the size of this exemption has fluctuated, Congress most recently increased it exponentially, jeopardizing the vitality of the entire transfer tax regime and potentially sapping it of its strength. To enhance the Nation's fiscal solvency and to reduce wealth inequality, this analysis contends that Congress must reduce the estate tax exemption (and, along with it, the gift and generation-skipping transfer tax exemptions). Furthermore, it …

One Person, Two Hats: Combining The Roles Of Chief Compliance Officer And Chief Legal Officer, Eden Marcu

Florida State University Law Review

No abstract provided.

Federal Oversight Of State Primaries: The Troubling Drift From Equal Protection To Association, Jacob Eisler

Scholarly Publications

No abstract provided.

A Liability Insurer's Breach Of The Duty To Defend And The Controversial Forfeiture Of Coverage Defenses, Douglas R. Richmond

Florida State University Law Review

No abstract provided.

More Is Different: Tort Liability Of Compromised Systems In Internet Denial Of Service Attacks, Robert A. Heverly

Florida State University Law Review

No abstract provided.

Vertical Stare Decisis And Three-Judge District Courts, Michael T. Morley

Scholarly Publications

Three-judge federal district courts have jurisdiction over many issues central to our democratic system, including constitutional challenges to congressional and legislative districts, as well as to certain federal campaign-finance statutes. They are similarly responsible for enforcing key provisions of the Voting Rights Act. Litigants often have the right to appeal their rulings directly to the U.S. Supreme Court. Because of this unusual appellate process, courts and commentators disagree on whether such three-judge district court panels are bound by circuit precedent or instead are free to adjudicate these critical issues constrained only by U.S. Supreme Court rulings.

The applicability of court …

A Short History Of The Public Trust Doctrine And Its Intersection With Private Water Law, Erin Ryan

Scholarly Publications

This article explores the development of public trust principles from early Roman and British law through modern U.S. law as a public commons approach to natural resource management, especially with regard to waterways. It then analyzes the tension between the common pool approach underlying the public trust regulation of waterways and the contrasting theoretical premises of American laws that regulate private use of the water within them—especially the privatization model embedded in the doctrine of prior appropriations, which assigns perpetual rights to withdraw from the watercourse on a first-in-time basis. The public trust doctrine, the protagonist of much modern environmental …

Institutionalism, Legitimacy, And Fact-Finding In International Disputes, Matthew W. Swinehart

Florida State University Law Review

Efforts to reform investor-state dispute settlement with an investment court promise to elevate the role of institutions in dispute resolution. The goal of this renewed campaign for institutionalism is to enhance both the legitimacy of arbitrators as individual decision-makers and the legitimacy of legal interpretation. But these reform efforts ignore another core aspect of legitimacy-the legitimacy of the fact-finding process. Ignoring this aspect of legitimacy is a significant oversight, as treaty authors, disputing parties, and practitioners all remain dissatisfied with fact-finding quality and with international law's continued failure to address the factual complexity of today's disputes. Both theory and experience …

Veiling Substance In Semantics: The Knotty State Of The Earmarking Doctrine, Lawrence Pono

Florida State University Law Review

Conflicting social philosophies with their infinite variations will inevitably influence law making and law interpretation. Consciously or unconsciously, social and political attitudes affect even those concerned with such an apparently technical matter as the definition of preferential transfer in bankruptcy. As it evolved over time from its English law antecedents, the law of preferential transfers in the United States gradually shifted its concern from the culpability of commercial actors to the effect of the transfer on distributive equality goals, culminating in our current law of preferences as codified in the federal Bankruptcy Code. While crafted in a highly technical and …

Responses To Liability Immunization: Evidence From Medical Devices, Elissa P. Gentry, Benjamin J. Mcmichael

Scholarly Publications

The Supreme Court's decision in Riegel v. Medtronic immunized medical device manufacturers from certain types of state product liability claims. However, this immunization applies only when the devices underlying those claims have been approved through the Food and Drug Administration's most rigorous-and costly-review process, premarket approval (PMA). Exploiting this decision, we examine whether manufacturers strategically respond to this new immunity. We find evidence that, following Riegel, approvals for highrisk product categories increase relative to the comparable change for low-risk categories, suggesting that firms are sensitive to the newly immunized risk. We additionally find evidence that physician treatment patterns with respect …

Controlled Substance Regulation For The Covid-19 Mental Health Crisis, Mason Marks

Scholarly Publications

The COVID-19 pandemic is producing widespread loss of life, unemployment, and social isolation that is triggering a mental health crisis. Experts warn there could be record levels of depression, suicide, and substance use disorders. The U.S. healthcare system is not prepared. It lacks the resources to provide prolonged psychotherapy at scale, and existing drug treatments are ineffective in about half the people who ty them. Amid worsening mental health-related morbidiy and mortaliy, the experimental drugs psilocybin and 3,4- Methylenedioxymethamphetamine (MDMA) are an untapped resource. These drugs belong to a class of compounds called the psychedelics, which has been criminalized and …

Fiduciary Boilerplate: Locating Fiduciary Relationships In Information Age Consumer Transactions, Lauren Henry Scholz

Scholarly Publications

The result of applying general contract principles to consumer boilerplate has been a mass transfer of unrestricted rights to use and sell personal information from consumers to companies. This has enriched companies and enhanced their ability to manipulate consumers. It has also contributed to the modern data insecurity crisis. Information age consumer transactions should create fiduciary relationships between firm and consumer as a matter of law. Recognizing this fiduciary relationship at law honors the existence of consumer agreements while also putting adaptable, contextsensitive limits on opportunistic behavior by firms. In a world of ubiquitous, interconnected, and mutable contracts, consumers must …

Indivisibilities In Technology Regulation, Lauren Henry Scholz

Scholarly Publications

No abstract provided.

The Limits And Promise Of Instrumental Legal Analysis, Jacob Eisler

Scholarly Publications

No abstract provided.

A Crisis Of Faith In (The Efficiency Of) Expectation Damages, Shawn Bayern

Scholarly Publications

Review of The Myth of Optimal Expectation Damages, 104 Marq. L. Rev. 141 (2020), by Theresa Arnold, Amanda Dixon, Madison Sherrill, and Mitu Gulati

For-Profit Managers As Public Fiduciaries: A Neo-Classical Republican Perspective, Rob Atkinson

Scholarly Publications

This Article examines the fiduciary duties of for-profit managers in modern liberal society. To arrive at the right "mix" of these duties, it compares the fiduciary duties implied by a standard descriptive model of our society with two competing normative models: Lockean libertarianism on the "right" and neo-classical republicanism on the "left." This comparison shows that all three versions of liberalism, even the one with a Lockean nightwatchman state, require far more extensive duties than we now expect, including a professionalization of management itself. And it shows that the version of liberalism with the most expansive state, neo-classical republicanism, requires …