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Articles 1 - 30 of 60
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Fair Funds And The Sec's Compensation Of Injured Investors, Verity Winship
Fair Funds And The Sec's Compensation Of Injured Investors, Verity Winship
Florida Law Review
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 priorities. This Article fills the gap by introducing terms of debate and proposing a framework for the SEC’s exercise of its discretion. The Article introduces the concept of “public class counsel,” a public actor that has the dual function of deterrence and victim compensation. The concept describes—and suggests limits to—the SEC’s role in a system in which …
Student Speech Rights In The Digital Age, Mary-Rose Papandrea
Student Speech Rights In The Digital Age, Mary-Rose Papandrea
Florida Law Review
For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context—the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a close …
Distilling Minimum Due Process Requirements For Punitive Damages Awards, Benjamin J. Robinson
Distilling Minimum Due Process Requirements For Punitive Damages Awards, Benjamin J. Robinson
Florida Law Review
No abstract provided.
Qualified Immunitity: When Is A Loss Ultimately A Win?, Michael J. Hooi
Qualified Immunitity: When Is A Loss Ultimately A Win?, Michael J. Hooi
Florida Law Review
No abstract provided.
False Statements V. Free Debate: Is The First Amendment A License To Lie In Elections?, Simon A. Rodell
False Statements V. Free Debate: Is The First Amendment A License To Lie In Elections?, Simon A. Rodell
Florida Law Review
No abstract provided.
Does A Cartel Aim Expressly? Trusting Calder Personal Jurisdiction When Antitrust Goes Global?, Larry Dougherty
Does A Cartel Aim Expressly? Trusting Calder Personal Jurisdiction When Antitrust Goes Global?, Larry Dougherty
Florida Law Review
Suppose your law firm represents CrabApple, the large, Californiabased manufacturer of the BuyPod, a portable digital music player. CrabApple also sells songs from its online music store, BuyTunes, for use on the BuyPod. One morning, a class-action antitrust lawsuit lands on your desk. It accuses CrabApple of illegal tying—because the BuyPod is designed to play only music from BuyTunes, and BuyTunes songs only play on BuyPods. CrabApple customers claim the tying has forced them to make unwanted purchases—BuyPod ownersfelt compelled to buy their music from BuyTunes, and anyone who wanted to use BuyTunes had to get a BuyPod. These consumers …
Resolving A "Substantial Question": Just Who Is Entitled To Bail Pending Appeal Under The Bail Reform Act Of 1984?, Doug Keller
Resolving A "Substantial Question": Just Who Is Entitled To Bail Pending Appeal Under The Bail Reform Act Of 1984?, Doug Keller
Florida Law Review
Under the Bail Reform Act of 1984, federal criminal defendants who wish to remain free on bail after conviction must prove that their appeal will have enough merit to raise at least one “substantial question.” Federal appellate courts, however, have been deeply divided over how much merit is required to show that an appeal will raise a “substantial question.” Ten circuits define the phrase as a “close question,” based on an implausible reading of the 1984 Bail Act’s legislative history. But the Ninth Circuit has interpreted the requirement to mean that a defendant must prove that his appeal will raise …
The Murder Rule That Just Won't Die: The Abolished Year-And-A-Day Rule Continues To Haunt The Florida Courts, Emily S. Wilbanks
The Murder Rule That Just Won't Die: The Abolished Year-And-A-Day Rule Continues To Haunt The Florida Courts, Emily S. Wilbanks
Florida Law Review
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 tiny face. She had broken ribs, and the soft spot on her skull was noticeably bulging. Doctors likened some of Christina’s injuries to those commonly seen in drowning victims. However, Christina had not drowned; doctors determined that Christina’s bruises and the swelling on her brain were caused either by being shaken or by having her oxygen supply …
Much Ado About Nothing? The Antitrust Implications Of Private Equity Club Deals, Jessica Jackson
Much Ado About Nothing? The Antitrust Implications Of Private Equity Club Deals, Jessica Jackson
Florida Law Review
In May 1976, with merely $120,000 and a few metal chairs left behind from a prior tenant, Kolberg Kravis Roberts & Co. (KKR) opened its doors. Though few people outside Wall Street circles knew of this start-up company, by the 1980s its reputation as a takeover machine brought it notoriety. One can only imagine what went on behind closed doors, but whatever happened, it worked. By 1989, KKR had become the largest client of accounting giant Deloitte & Touche, with General Motors following as a close second. The “Age of Leverage” peaked in 1990 when KKR took over RJR Nabisco. …
Reining In Abuses Of Executive Power Through Substantive Due Process, Rosalie Berger
Reining In Abuses Of Executive Power Through Substantive Due Process, Rosalie Berger
Florida Law Review
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 used to implement them.’” The Court has recognized substantive due process limitations on law-enforcement personnel, publicschool officials, government employers, and those who render decisions that affect our property rights. Government officials who act with intent to harm or with deliberate indifference to our rights have been found to engage in conduct that “shocks the judicial conscience” contrary …
Confusion And Upredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann Scarlett
Confusion And Upredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann Scarlett
Florida Law Review
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 and introduced unpredictability into derivative litigation. This Article also analyzes the future negative consequences for shareholders, corporations, directors, investors, and other litigants. Finally, this Article proposes improvements for derivative litigation that may alleviate the confusion and unpredictability created by the Delaware courts’ response to the recent scandals
Substantive Due Process: Sex Toys After Lawrence Williams V. Morgan, 478 F.3d 1316 (11th Cir. 2007), Michael J. Hooi
Substantive Due Process: Sex Toys After Lawrence Williams V. Morgan, 478 F.3d 1316 (11th Cir. 2007), Michael J. Hooi
Florida Law Review
No abstract provided.
In Honor Of Walter O. Weyrauch: The Case For Overturning Williams V. Florida And The Six-Person Jury: History, Law, And Empirical Evidence, Alisa Smith, Michael J. Saks
In Honor Of Walter O. Weyrauch: The Case For Overturning Williams V. Florida And The Six-Person Jury: History, Law, And Empirical Evidence, Alisa Smith, Michael J. Saks
Florida Law Review
After 700 years of common-law history and nearly 200 years of constitutional history, the Supreme Court concluded that the constitutionally permissible minimum jury size could not be inferred from the language or the history of the Constitution. The answer, said the Court in Williams v. Florida, could be found only through a “functional analysis” of the performance of smaller juries (that is, empirical examination of the behavior of different-sized juries). The Court implicitly abandoned that analysis in Ballew v. Georgia, when it held that juries with fewer than six members were unconstitutional-a decision based on nothing more than the ipse …
In Honor Of Walter O. Weyrauch: Substantive Due Process Limits On Punitive Damages Awards: "Morals Without Technique"?, Emily Gold Waldman, F. Patrick Hubbard
In Honor Of Walter O. Weyrauch: Substantive Due Process Limits On Punitive Damages Awards: "Morals Without Technique"?, Emily Gold Waldman, F. Patrick Hubbard
Florida Law Review
In a series of cases decided over the last two decades, the Supreme Court has used the Due Process Clause to establish a procedural and substantive framework for awarding punitive damages. Initially, the substantive aspects of this framework were sufficiently clear and flexible that they required little change in the system and probably generated a helpful level of debate and uniformity as to some basic requirements for awards. However, in BMW of North America, Inc. v. Gore, the Court adopted an approach characterized by a lack of clarity and consistency, an inadequate basis in theory and policy, and ad hoc …
Tort Arbitrage, Robert J. Rhee
Tort Arbitrage, Robert J. Rhee
Florida Law Review
The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the economic theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is aproper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties’ …
Surpassing Sentencing: The Controversial Next Step In Confrontation Clause Jurisprudence, Amanda Harris
Surpassing Sentencing: The Controversial Next Step In Confrontation Clause Jurisprudence, Amanda Harris
Florida Law Review
After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing. This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this …
Perspective On Judicial Merit Retention In Florida, Scott G. Hawkins
Perspective On Judicial Merit Retention In Florida, Scott G. Hawkins
Florida Law Review
This November, voters will decide whether to retain in office three justices of the Florida Supreme Court and fifteen judges of the district courts of appeal. This Essay explains the merit retention process and puts that process in historical context. It analyzes the challenges voters face in making decisions about whether to retain appellate court judges and highlights The Florida Bar’s role in educating voters about merit retention. The Florida constitution entrusts the important decision whether to retain appellate court judges, including supreme court justices, to the voters, and in order to make that decision, voters must be informed about …
Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, And The Methodology Of Legal Scholarship, Chad M. Oldfather, Joseph P. Bockhorst, Brian P. Dimmer
Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, And The Methodology Of Legal Scholarship, Chad M. Oldfather, Joseph P. Bockhorst, Brian P. Dimmer
Florida Law Review
The increasing availability of digital versions of court documents, coupled with increases in the power and sophistication of computational methods of textual analysis, promises to enable both the creation of new avenues of scholarly inquiry and the refinement of old ones. This Article advances that project in three respects. First, it examines the potential for automated content analysis to mitigate one of the methodological problems that afflicts both content analysis and traditional legal scholarship—their acceptance on faith of the proposition that judicial opinions accurately report information about the cases they resolve and courts‘ decisional processes. Because automated methods can quickly …
Toward A Specific Intent Requirement In White Collar Crime Statutes: How The Patient Protection And Affordable Care Act Of 2010 Sheds Light On The “General Intent Revolution”, Elizabeth R. Sheyn
Toward A Specific Intent Requirement In White Collar Crime Statutes: How The Patient Protection And Affordable Care Act Of 2010 Sheds Light On The “General Intent Revolution”, Elizabeth R. Sheyn
Florida Law Review
The recent passage of the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, ACA), has altered the landscape of health care and health insurance. However, it has also served to highlight the revolution in the intent requirement for white collar crimes. In particular, the ACA lowers the intent requirement for several health care fraud statutes from “specific intent to defraud” to “general intent to deceive,” which is consistent with federal courts’ recent trend of not requiring proof of the defendant’s knowledge of the law before finding a …
The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy, Gregory I. Massing
The Model Penal Code’S Wrong Turn: Renunciation As A Defense To Criminal Conspiracy, R. Michael Cassidy, Gregory I. Massing
Florida Law Review
While the Model Penal Code was certainly one of the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing “renunciation” as a defense to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned …
The Lessons From Libor For Detection And Deterrence Of Cartel Wrongdoing, Rosa M. Abrantes-Metz, D. Daniel Sokol
The Lessons From Libor For Detection And Deterrence Of Cartel Wrongdoing, Rosa M. Abrantes-Metz, D. Daniel Sokol
UF Law Faculty Publications
In late June 2012, Barclays entered into a $453 million settlement with UK and U.S. regulators due to its manipulation of Libor between 2005 and 2009. Among the agencies that investigated Barclays is the Department of Justice Antitrust Division (as well as other antitrust authorities and regulatory agencies from around the world). Participation in a price fixing conduct, by its very nature, requires the involvement of more than one firm.
We are cautious to draw overly broad conclusions until more facts come out in the public domain. What we note at this time, based on public information, is that the …
Eighteenth Century Law, Twenty-First Century Problems: Jones, Gps Tracking, And The Future Of Privacy, Lauren Millcarek
Eighteenth Century Law, Twenty-First Century Problems: Jones, Gps Tracking, And The Future Of Privacy, Lauren Millcarek
Florida Law Review
In 2004, law enforcement officers began investigating Antoine Jones, a Washington, D.C. nightclub owner, for suspected drug trafficking. After gathering information through stakeouts, cameras, and a wiretap on Jones’ phone, the officers obtained a warrant to place a Global Positioning System (GPS) tracker on Jones’ wife’s car, which Jones possessed and used regularly. However, the officers failed to comply with the precise terms of the warrant, making the installation and use of the tracker warrantless. The officers tracked the car’s every movement, twenty-four hours per day, for an entire month. The data linked Jones to a stash house containing a …
Intellectual Property And Human Rights In The Nonmultilateral Era, Peter K. Yu
Intellectual Property And Human Rights In The Nonmultilateral Era, Peter K. Yu
Florida Law Review
In the past decade, countries have actively established bilateral, plurilateral, and regional trade and investment agreements, such as the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership Agreement. Although commentators have examined the conflict and tension between intellectual property and human rights in the past, the arrival of these agreements has ushered in a new era of nonmultilateralism that warrants a reexamination of the complex interrelationship between intellectual property and human rights. This Article closely examines the human rights impact of the intellectual property provisions in TRIPS-plus nonmultilateral agreements. It begins by outlining the challenges inherent in any analysis of the …
Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott
Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott
Florida Law Review
Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest. The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a summons …
Pleading, Discovery, And The Federal Rules: Exploring The Foundation Of Modern Procedure, Martin H. Reddish
Pleading, Discovery, And The Federal Rules: Exploring The Foundation Of Modern Procedure, Martin H. Reddish
Florida Law Review
This Article provides a foundational structural analysis underlying the federal procedural system and explores the implications of that normative framework for the proper shaping of the federal system’s pleading and discovery rules. By analyzing and synthesizing the different elements of this underlying “litigation matrix,” the Article concludes that the Supreme Court’s “plausibility” test for pleading under Rule 8(a) of the Federal Rules of Civil Procedure represents an appropriate balance of the competing deep structural elements by imposing on a defendant the risks of unnecessarily burdensome pretrial discovery processes only when the complaint includes enough facts to suggest the viability of …
How To Think About Errors, Costs, And Their Allocation, Ronald J. Allen
How To Think About Errors, Costs, And Their Allocation, Ronald J. Allen
Florida Law Review
There is an ongoing, robust debate about the structure of litigation, and in particular, about access to the courts. For a considerable period of time, the mantra that the courts should be readily available to all the people so that people may present claims that their rights have been violated has dominated academic discourse and has, perhaps, significantly influenced the structure of litigation.1 This conventional view—that the courts should be freely open to all—was dealt a blow by the Iqbal2 and Twombly3 decisions, which imposed greater gatekeeping responsibilities on the federal district courts. These decisions predictably provoked a storm of …
An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Benjamin H. Barton
An Empirical Study Of Supreme Court Justice Pre-Appointment Experience, Benjamin H. Barton
Florida Law Review
This Article compares the years of experience that preceded each Justice‘s appointment to the United States Supreme Court. This Article seeks to demonstrate that the background experiences of the Roberts Court Justices are quite different from those of earlier Supreme Court Justices and to persuade the reader that this is harmful. To determine how the current Justices compare to their historical peers, the study gathered a database that considers the yearly pre-Court experience for every Supreme Court Justice from John Jay to Elena Kagan. The results are telling: the Roberts Court Justices have spent more pre-appointment time in legal academia, …
The Unsettled State Of Pregnancy Discrimination Claims Under The Florida Civil Rights Act Of 1992, Donna L. Eng
The Unsettled State Of Pregnancy Discrimination Claims Under The Florida Civil Rights Act Of 1992, Donna L. Eng
UF Law Faculty Publications
Florida's employment law practitioners are no doubt aware that employment discrimination actions may be brought under both Title VII of the Civil Rights Act of 1964 (Title VII), and under the Florida Civil Rights Act of 1992 (FCRA). Both sections contain similar verbiage, and for years, courts have held the Florida Civil Rights Act be interpreted in conformity with Title VII. However, the statutes differ in an important respect: While Title VII expressly forbids sex discrimination on the basis of pregnancy, the Florida Civil Rights Act of 1992 does not.
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia
UF Law Faculty Publications
This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …
Punishment Without Culpability, John F. Stinneford
Punishment Without Culpability, John F. Stinneford
UF Law Faculty Publications
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The …