Digital Commons Network^™

Traditional Versus Economic Analysis: Evidence From Cardozo And Posner Torts Opinions, Lawrence A. Cunningham

Florida Law Review

No abstract provided.

Bending Nature, Bending Law, David G. Owen

Florida Law Review

No abstract provided.

Adjudicators, Not Legislators: Eleventh Circuit Declines Opportunity To “Breathe Further Life” Into § 212(C) Deportation Relief, Andres Healy

Florida Law Review

No abstract provided.

The Consent-Once-Removed Doctrine: The Constitutionality Of Passing Consent From And Informant To Law Enforcement, Tim Sobczak

Florida Law Review

No abstract provided.

The Constitutionality Of Amended 10 U.S.C. Sec. 802(A)(10): Does The Military Need A Formal Invitation To Reign In "Cowboy" Civilian Contractors?, Andres Healy

Florida Law Review

No abstract provided.

The New Federal Pleading Standard, Allison Sirica

Florida Law Review

No abstract provided.

Disability Stigma And Intraclass Discrimination, Jeannette Cox

Florida Law Review

By dramatically enlarging the Americans with Disabilities Act’s (ADA) protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. Although disparities in the social stigma associated with different disabilities suggests that such employment decisions are not automatically free from disability-based animus, many courts historically regarded such decisions as immune from ADA scrutiny. They held that the ADA only prohibited discrimination between persons inside and outside the ADA’s protected class. Today, this “no intraclass claims” approach persists in a modified form: Some courts limit intraclass claims to …

Lifting The Blindfold From Lady Justice: Allowing Judges To See The Structure In The Judicial Code, Gregory C. Sisk

Florida Law Review

No abstract provided.

Following Industry's Leed®: Municipal Adoption Of Private Green Building Standards, Sarah B. Schindler

Florida Law Review

Local governments are beginning to require new, privately constructed and funded buildings to be “green” buildings. Instead of creating their own, locally-derived definitions of green buildings, many municipalities are adopting an existing private standard created by members of the building industry: LEED (Leadership in Energy and Environmental Design). This Article explains and assesses the privately promulgated LEED standards. It argues that the translation of LEED standards, which were intended to be voluntary, into law raises several theoretical and practical problems. Specifically, private green building ordinances that rely on LEED do not ensure a reduction in the negative local environmental impacts …

Unwitting Sanctions: Understanding Anti-Bribery Legislation As Economic Sanctions Against Emerging Markets, Andrew Brady Spalding

Florida Law Review

Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA), is to deter bribery, empirical evidence demonstrates a problematic collateral effect. In countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond the deterrence of bribery, and ultimately deters investment. Drawing on literature from political science and economics, this Article argues that anti-bribery legislation, as presently enforced, functions as de facto economic sanctions. A detailed analysis of the history of FCPA enforcement shows that these sanctions most often occur in emerging markets, where historic opportunities for economic and social development …

Defamation In The Internet Age: Why Roommates.Com Isn't Enough To Change The Rules For Anonymous Gossip Websites, Skyler Mcdonald

Florida Law Review

No abstract provided.

What Virtual Worlds Can Do For Property Law, Juliet M. Moringiello

Florida Law Review

No abstract provided.

The Eleventh Amendment And Federal Discovery: A New Threat To Civil Rights Litigation, Jennifer Lynch

Florida Law Review

Lawyers for the State of California have argued recently in several federal civil rights cases that the state sovereign immunity doctrine bars all discovery issued to the state, its agencies, and its employees. While courts agree that sovereign immunity generally protects states from suit in federal court and that this immunity does not extend to state employees, it is unclear whether state sovereign immunity should apply at all to federal discovery, especially when discovery is a necessary part of a lawsuit against a state employee.

This Article is the first to analyze states’ attempts to expand the sovereign immunity doctrine …

Families Across Borders: The Hague Children's Conventions And The Case For International Family Law In The United States, Ann Laquer Estin

Florida Law Review

In our globalized world, as families form and dissolve across international borders, domestic family law does not adequately address the needs of parents and children with ties to multiple legal systems. For these cases, the Hague Children’s Conventions provide a useful legal framework developed and implemented through the cooperative efforts of more than one hundred nations. Currently, the United States participates in the 1980 Child Abduction Convention and the 1993 Intercountry Adoption Convention, and has taken steps toward ratification of the 2007 Family Maintenance Convention and the 1996 Child Protection Convention. The four Children’s Conventions offer an important opportunity for …

Hidden Engines Of Destruction: The Reasonable Expectation Of Code Safety And The Duty To Warn In Digital Products, Andrea M. Matwyshyn

Florida Law Review

This Article explores a seemingly straightforward question: to what extent is a consumer entitled to know how digital products work and the likelihood of digital harm? In previous work, I have explored this question in the context of contract law and consumer consent. This Article approaches the question from a different legal context. Specifically, this Article considers whether a duty to warn should exist in connection with digital products. Even if we assume arguendo that a harmed consumer will have difficulty quantifying actual damages, an independent duty to warn on the part of the digital product creator or operator may …

Twombly Is The Logical Extension Of The Mathews V. Eldridge Test To Discovery, Andrew Blair-Stanek

Florida Law Review

The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary, but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test, used to determine whether procedural due process requires adopting a procedural safeguard. Twombly recognized that misused discovery can deprive litigants of property and liberty interests, and, thus, consistent with Mathews, requires a safeguard—dismissing the complaint. Based on this conclusion, …

A Great Gamble: Why Compromise Is The Best Bet To Resolve Florida’S Indian Gaming Crisis, Allison Sirica

Florida Law Review

No abstract provided.

When Immigration Borders Move, Huyen Pham

Florida Law Review

With recent immigration enforcement efforts, we have created a completely new paradigm of moving borders: laws, enacted at all levels of government, that require proof of legal immigration status in order to obtain a driver's license, a job, rental housing, government need-based assistance, and numerous other essential benefits. Unlike the fixed physical border, these laws require proof of immigration status at multiple, moving points within the country's interior and are triggered through everyday transactions; if unable to prove her legal status, a person is denied the restricted benefit. If a person is denied access to multiple essential benefits, then she …

When "Now Known Or Later Developed" Fails Its Purpose: How P2p Litigation Has Turned The Distribution Right Upside-Down, Vincent J. Galluzzo

Florida Law Review

No abstract provided.

Rethinking The Parameters Of Trademark Use In Entertainment, Elizabeth L. Rosenblatt

Florida Law Review

Trademark law is flawed in its approach to trademark uses in entertainment. Infringement turns on whether a consumer is likely to be confused into believing that a markholder sponsored or approved of the use. Because consumers are increasingly aware of product placement and other sponsored mark uses, this likelihood of confusion standard may be met, and infringement found, even for harmless and/or artistically relevant uses, such as uses for purposes of verisimilitude or uses that rely on a mark’s symbolic meaning to assist in conveying a work’s message. This increased likelihood of confusion chills speech by forcing content creators to …

Second-Order Proof Rules, Michael S. Pardo

Florida Law Review

Proof rules in law dictate when facts have been proven. They do so by specifying a level of proof such as by a preponderance of the evidence, by clear and convincing evidence, or beyond a reasonable doubt. The goals of the rules are to minimize errors (accuracy) and to allocate the risk of error fairly. I argue that the current rules fail to serve these two goals. Rather than suggesting we abandon these well-entrenched rules, I propose and argue for “second order” proof rules that will better align decision-making with its goals by providing criteria for applying the current rules. …

From Bush V. Gore To Namudno: A Response To Professor Amar, Ellen D. Katz

Florida Law Review

No abstract provided.

Bush V. Gore At The Dawning Of The Age Of Obama, Nelson Lund

Florida Law Review

No abstract provided.

The Meaning Of Bush V. Gore: Thoughts On Professor Amar's Analysis, Erwin Chemerinsky

Florida Law Review

No abstract provided.

Bush V. Gore And The Lawlessness Principle: A Comment On Professor Amar, Richard L. Hasen

Florida Law Review

No abstract provided.

Bush, Gore, Florida, And The Constitution, Akhil Reed Amar

Florida Law Review

No abstract provided.

Setting The “Persecutor Bar” For Political Asylum After Negusie, David A. Karp

Florida Law Review

No abstract provided.

Politics Versus Precision: Did The Miami-Dade School Board Violate The First Amendment When It Voted To Remove ¡Vamos A Cuba! From Its District Libraries?, Lindsay M. Saxe

Florida Law Review

No abstract provided.

Shedding (False) Light: How The Florida Supreme Court’S Rejection Of The Tort Falsely Implies Protection For Media Defendants, Kristen Rasmussen

Florida Law Review

No abstract provided.

Confidential Sources Reconsidered, David A. Anderson

Florida Law Review

For fifty years, the courts have debated whether the First Amendment guarantees of freedom of the press requires that journalists be allowed to protect confidential sources. Many state and federal courts have answered in the affirmative, creating a First Amendment “reporter’s privilege.” The Supreme Court has declined to recognize such a privilege, but has not foreclosed the possibility. This Article suggests that the constitutional guarantee can be honored without prescribing a constitutionally defined privilege. Whether freedom of the press requires protection of confidential sources is one question; what means should be chosen to protect them is another. Courts should separate …