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- As opposed to common law tort actions. After briefly summarizing the case (1)
- Conveys the Court’s preference to confine climate change litigation to agency- and regulatory-focused actions (1)
- However (1)
- In American Electric Power Co. v. Connecticut (AEP) (1)
- Suggesting that state-based claims such as public nuisance could play some part in future climate change litigation. The opinion (1)
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- The U.S. Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants (1)
- This Comment considers the implications of that preference with regard to the “climate vulnerable”-populations that are disproportionately impacted by the effects of climate change-with a focus on Florida. (1)
- ” foreclosing the use of federal common law rights of action in climate change litigation. The Court left unanswered the question of whether the Clean Air Act also displaces state common law tort actions (1)
Articles 31 - 60 of 63
Full-Text Articles in Law
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Florida Law Review
Nearly twenty years ago in Hazelwood School District v. Kuhlmeier, the Supreme Court, in upholding the constitutionality of a public high school principal’s censorship of a student newspaper produced in a journalism class, held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Since then, Hazelwood’s “reasonably related to legitimate pedagogical concerns” This Article argues that this conundrum can be untangled by returning to Hazelwood’s core as a student speech case. It first …
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 …
The New Crowdfunding Registration Exemption: Good Idea, Bad Execution, Stuart R. Cohn
The New Crowdfunding Registration Exemption: Good Idea, Bad Execution, Stuart R. Cohn
Florida Law Review
Title III of the JOBS Act, signed by President Obama on April 5, 2012, sets forth a new exemption from federal and state securities registration for so-called “crowdfunding” promotions. Crowdfunding is an increasingly popular form of raising capital through broad-based internet solicitation of donors. Many promotions simply seek charitable or other donations. But the lure of raising funds through the internet has also led to promotions for potentially profitable ventures that offer an economic return to donors. These efforts invoke the federal and state securities laws, as there are no de minimis standards protecting even the smallest of offerings. Registration …
The Invisibility Of Jurisdictional Procedure And Its Consequences, Justin R. Pidot
The Invisibility Of Jurisdictional Procedure And Its Consequences, Justin R. Pidot
Florida Law Review
Modern standing doctrine has been the subject of substantial scholarly inquiry. Critics charge that it allows judges to resolve cases based on their own ideologies, favoring corporations over individuals and those who harm over those harmed. The doctrine likewise disserves social justice, preventing adjudication of indisputably meritorious claims. Yet the focus on the substance of standing doctrine has obscured an equally significant impediment to justice created by the procedures that judges use to adjudicate questions of standing and subject matter jurisdiction generally. The unusual dimensions of jurisdictional procedure have largely escaped notice. This Essay interrogates the history and context of …
Law Of The Intermediated Information Exchange, Jacqueline D. Lipton
Law Of The Intermediated Information Exchange, Jacqueline D. Lipton
Florida Law Review
When Wikipedia, Google, and other online service providers staged a ―blackout protest‖ against the Stop Online Piracy Act (SOPA) in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could—and should—be reconceptualized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries—the service providers who facilitate all …
Election Law Behind A Veil Of Ignorance, Chad Flanders
Election Law Behind A Veil Of Ignorance, Chad Flanders
Florida Law Review
Election law struggles with the question of neutrality, not only with its possibility—can election rules truly be neutral between parties?—but also with its definition. What does it mean for election laws to be ―neutral‖? This Article examines one form of election law neutrality, found in what it terms ―veil of ignorance rules.‖ Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections. This Article considers the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly (in the Lisa Murkowski …
America’S First Patents, Michael Risch
America’S First Patents, Michael Risch
Florida Law Review
Courts and commentators vigorously debate early American patent history because of a spotty documentary record. To fill these gaps, scholars have examined the adoption of the Intellectual Property Clause of the Constitution, correspondence, dictionaries, and British and colonial case law. But there is one largely ignored body of information—the content of early patents themselves. While many debate what the founders thought, no one asks what early inventors thought—and those thoughts are telling. This Article is the first comprehensive examination of how early inventors and their patents should inform our current thoughts about the patent system. To better understand our early …
The Gold Clause Cases And Constitutional Necessity, Gerard N. Magliocca
The Gold Clause Cases And Constitutional Necessity, Gerard N. Magliocca
Florida Law Review
This Article presents a case study of how constitutional actors respond when the rule of law and necessity are sharply at odds and provides some background on Section Four of the Fourteenth Amendment. In 1935, the Supreme Court heard constitutional challenges to the abrogation of “gold clauses” in contracts and Treasury bonds. Gold clauses guaranteed that creditors would receive payment in gold dollars as valued at the time a contract was made. Due to the deflation that followed the Great Depression, this meant that debtors were being forced to pay back much more than they owed originally. To stop a …
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 …
Just What The Doctor Ordered? How The Patient Safety And Quality Improvement Act May Cure Florida’S Patients’ Right To Know About Adverse Medical Incidents (Amendment 7), Kelly G. Dunberg
Florida Law Review
This Note addresses the impact of Florida’s Patients’ Right to Know About Adverse Medical Incidents (commonly known as Amendment 7) on the peer review process and the quality of healthcare in Florida. Enacted in 2004 as an amendment to the Florida Constitution, Amendment 7 provides citizens access to records and reports of past adverse medical incidents involving doctors, hospitals, and healthcare providers. Critics of Amendment 7 argue that peer review privilege protections are necessary to maintain high-quality healthcare in Florida, pointing to the need to encourage candid and vigorous evaluations by physicians of their colleagues. In contrast, Amendment 7 supporters …
Popular Originalism? The Tea Party Movement And Constitutional Theory, Rebecca E. Zietlow
Popular Originalism? The Tea Party Movement And Constitutional Theory, Rebecca E. Zietlow
Florida Law Review
The U.S. Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the Constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism—constitutional interpretation outside of the courts—to invoke originalism as interpretive method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look to history to …
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 …
Nineteenth Century Personal Jurisdiction Doctrine In A Twenty-First Century World, Charles W. "Rockey" Rhodes
Nineteenth Century Personal Jurisdiction Doctrine In A Twenty-First Century World, Charles W. "Rockey" Rhodes
Florida Law Review
The initial twenty-first century personal jurisdiction decisions from the Supreme Court reveal that personal jurisdiction doctrine has not changed much since the nineteenth century. The nomenclature has changed, realism has replaced formalism, some fictions purportedly have been discarded, and the adjudicatory reach of courts has somewhat expanded, but the doctrine retains the same conceptual core—the social contract philosophical tradition limiting the scope of governmental authority to those establishing the requisite relationship with the sovereign.
The Open Road And The Traffic Stop: Narratives And Counter-Narratives Of The American Dream, Nancy Leong
The Open Road And The Traffic Stop: Narratives And Counter-Narratives Of The American Dream, Nancy Leong
Florida Law Review
American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. I examine the cultural texts—books, movies, songs—celebrating the open road and juxtapose them against those documenting the traffic stop. The …
Preserving Legal Avenues For Climate Justice In Florida Post-American Electric Power, Allison Fishman
Preserving Legal Avenues For Climate Justice In Florida Post-American Electric Power, Allison Fishman
Florida Law Review
No abstract provided.
Adapting Laws For A Changing World: A Systemic Approach To Climate Change Adaptation, Victor B. Flatt
Adapting Laws For A Changing World: A Systemic Approach To Climate Change Adaptation, Victor B. Flatt
Florida Law Review
This Essay suggests that policy responses in climate change adaptation must be addressed and that focusing on adapting laws may be a good way to undertake this work. Following a review of existing scholarship and normative theories concerning law generally, environmental law, climate change, and adaptation, this Essay then proposes a template for approaching the adaptation of laws. This template would (1) examine where climate change puts pressure on the operation of laws; (2) seek to alter the implementation of that law or to alter the law itself to hew closely to the law’s original purposes; and (3) make these …
Critical Habitat And The Challenge Of Regulating Small Harms, Dave Owen
Critical Habitat And The Challenge Of Regulating Small Harms, Dave Owen
Florida Law Review
This Article investigates how the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on “adverse modification” of “critical habitat.” That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 “biological opinions,” interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, this Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse modification …
Balancing Compassion And Risk In Climate Adaptation: U.S. Water, Drought, And Agricultural Law, Robert W. Adler
Balancing Compassion And Risk In Climate Adaptation: U.S. Water, Drought, And Agricultural Law, Robert W. Adler
Florida Law Review
It is inevitable that the world will experience a significant amount of global warming before efforts to mitigate the buildup of greenhouse gases (GHGs) in the atmosphere can even begin to succeed. Therefore, adaptation to climate change impacts, as well as mitigation, will be necessary to deal with climate disruption. In designing climate change adaptation efforts, a looming issue is how to balance the need and compassionate impulse to provide financial and other relief to victims of climate disruption impacts with the equally compelling need to reduce the overall risk of those impacts. U.S. water, drought, and agricultural law and …
Planetarian Identity Formation And The Relocalization Of Environmental Law, Sarah Krakoff
Planetarian Identity Formation And The Relocalization Of Environmental Law, Sarah Krakoff
Florida Law Review
Local food, local work, local energy production-all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This Article maintains, however, that some forms of localism are actually expressions, appropriate ones, of a planetary environmental consciousness. This Article’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants, as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions …
An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, David Markell, J.B. Ruhl
An Empirical Assessment Of Climate Change In The Courts: A New Jurisprudence Or Business As Usual?, David Markell, J.B. Ruhl
Florida Law Review
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 the Florida Law Review demonstrate, EPA is not the only important player in the climate arena; indeed, as I will reluctantly suggest, the Agency’s efforts here appear to be waning rather than waxing. Even so, before turning to other aspects of the problem of climate change, discussed in other works in …
Introduction: Climate Change At Epa, Lisa Heinzerling
Introduction: Climate Change At Epa, Lisa Heinzerling
Florida Law Review
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 the Florida Law Review demonstrate, EPA is not the only important player in the climate arena; indeed, as I will reluctantly suggest, the Agency’s efforts here appear to be waning rather than waxing. Even so, before turning to other aspects of the problem of climate change, discussed in other works in …
Wrong Means To An Unjust End? The Eleventh Circuit’S Decision In First Vagabonds Church Of God, Fay O. Pappas
Wrong Means To An Unjust End? The Eleventh Circuit’S Decision In First Vagabonds Church Of God, Fay O. Pappas
Florida Law Review
In 2005, Orlando Food Not Bombs (OFNB), a conglomeration of political activists who advocate a “right to food,” began conducting “food-sharing events” once a week in downtown Orlando, Florida. OFNB distributed free vegan meals in Lake Eola Park to the hungry and homeless. Soon, however, the City began receiving complaints related to the number of homeless individuals who would disperse into adjacent neighborhoods following the events. In response, the City enacted the Large Group Feeding Ordinance, which required a permit for any feeding event likely to attract twenty-five or more people.
Hurd V. Espinoza: “Third Party Confidential Information” In Delaware Corporate Litigation, Giselle Gutierrez
Hurd V. Espinoza: “Third Party Confidential Information” In Delaware Corporate Litigation, Giselle Gutierrez
Florida Law Review
On June 24, 2010, celebrity attorney Gloria Allred sent a letter (the Allred Letter) to Mark Hurd, then the Chief Executive Officer of Hewlett-Packard Company (HP), claiming that Hurd sexually harassed her client Jodie Fisher, a former HP contractor. In addition to being marked “CONFIDENTIAL TO BE OPENED BY ADDRESSEE ONLY,” the letter included a ledger at the top that read, “PERSONAL & CONFIDENTIAL.” Hurd gave the letter to Michael Holston, HP’s Executive Vice President and General Counsel. Although Hurd and Fisher privately settled the claim without Fisher filing suit, HP publicly announced on August 6, 2010, that Hurd had …
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 …
A Modest Proposal For Human Limitations On Cyberdiscovery, Richard Esenberg
A Modest Proposal For Human Limitations On Cyberdiscovery, Richard Esenberg
Florida Law Review
Many lawyers, whether by training or disposition, have come to regard discovery as a process in which no stone is to be left unturned. With the advent of electronically stored information, the stones have become too numerous to account. Discovery rules that seek the perfection of preserving and producing all potentially pertinent information have become the enemy of the good. This article calls for a more pragmatic—and modest—approach.
From Trademarks To Brands, Devin R. Resai
From Trademarks To Brands, Devin R. Resai
Florida Law Review
The business world has moved from using trademarks—simple symbols identifying products—to brands—rich symbols that feed business strategy. At the same time, networked and empowered consumers are using brands, brand language, and branding strategies to make decisions about what they purchase, express preferences about how corporations conduct their business, and call for changes in corporate practices. These changes are the future of commerce. But trademark law has not kept pace with either. This Article argues that because brands are governed by trademark law, the full realization of brands as information resources is hindered. Current trademark law is blinkered and confused, and …
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 …