Law Commons^™

How The Federal Cause Of Action Relates To Rights, Remedies, And Jurisdiction, John F. Preis

Florida Law Review

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction all hinge on the existence of a cause of action. What, then, is the proper relationship between these concepts?

The goal of this Article is to articulate that relationship. This Article traces the history of the cause of action from eighteenth-century England to its modern usage in the federal courts. This history demonstrates that the federal cause of action is …

Antitrust Limits On Targeted Patent Aggregation, Alan Devlin

Florida Law Review

Patent-assertion entities (PAEs) are non-technology-practicing companies that aggregate and license patents under threat of suit. Their activities have drawn fire, including presidential condemnation, and spurred proposed legislation to protect operating firms against them. PAEs leverage flaws in the patent system to extort firms that independently invent and sell technological goods to consumers. Since PAEs tax innovators and appear to restrict rather than facilitate wealth transfer to original patentees, their worst rent-seeking practices almost certainly reduce net incentives to innovate and harm consumers. This result is more likely if the principal desirable incentive that PAEs create is to file patents rather …

Impact Preemption: A New Theory Of Federal Arbitration Preemption, Kristen M. Blankley

Florida Law Review

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than even field preemption. The future policy implications of impact preemption are significant. Impact preemption shifts the balance of regulatory power in the dual federal–state arbitration system toward the federal courts and away from state regulatory authorities, contrary to the language and legislative history of the Federal Arbitration Act (FAA). In addition, impact preemption has the potential to undermine the stability …

Principles For Publicness, Onnig H. Dombalagian

Florida Law Review

What duties does a “public” company owe investors, markets, and society? In recent years, Congress has both strengthened and diluted the federal disclosure and corporate governance regime that applies to public companies in the United States. However, it has never articulated a framework for what it means to be “public,” and how the obligations of public companies should reflect the needs of the constituencies whose financial and social interests they affect. As a result, firms fear that becoming public is an impediment to growth, and they game gradations of publicness to avoid compliance burdens. This Article proposes reframing the regulation …

Inventive Application: A History, Jeffrey A. Lefstin

Florida Law Review

The Supreme Court’s recent cases on patent-eligible subject matter have struggled to draw the line between unpatentable fundamental principles, such as laws of nature and abstract ideas, and patentable inventions. In Mayo v. Prometheus, the Court suggested that only “inventive applications” of fundamental principles fall within the domain of the patent system. Both Mayo and its intellectual forebear, Parker v. Flook, anchored this doctrine in Neilson v. Harford, the famous “hot blast” case decided by the Court of Exchequer in 1841. But the Supreme Court has founded the inventive application doctrine on a basic misapprehension. Neilson’s patent on the hot …

Consent Searches And Fourth Amendment Reasonableness, Alafair S. Burke

Florida Law Review

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme Court has repeatedly injected an objective standard of reasonableness into its analysis of a citizen’s consent. Several scholars have characterized the Court’s consent jurisprudence as focusing not on true voluntariness but on the reasonableness of police conduct, which they argue is appropriate because the touchstone of the Fourth Amendment is “reasonableness.” While the renewed scholarly focus on the role of …

Limiting Political Contributions After Mccutcheon, Citizens United, And Speechnow, Albert W. Alschuler

Florida Law Review

There was something unreal about the opinions in McCutcheon v. FEC. These opinions examined a series of strategies for circumventing the limits on contributions to candidates imposed by federal election law, but they failed to notice that the limits were no longer breathing. The D.C. Circuit’s decision in SpeechNow.org v. FEC had created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional.

This Article argues that the D.C. Circuit erred; Citizens United v. FEC did not require unleashing super PAC contributions. The Article …

Bouncing The Proverbial Blank Check: An Argument For Including Candidates For Public Office Within The Scope Of The Hobbs Act, Jennifer Lada

Florida Law Review

The Hobbs Act, codified at 18 U.S.C. § 1951, criminalizes bribery of and extortion by public officials. Under the statute, “‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” But the meaning of “under color of official right” remains ambiguous. This Note examines the ambiguity created by the phrase “under color of official right” to decide whether a candidate for public office can be held accountable under the Hobbs Act for extortion. More specifically, this Note addresses whether a candidate …

In The Name Of The Child: Race, Gender, And Economics In Adoptive Couple V. Baby Girl , Bethany R. Berger

Florida Law Review

On June 25, 2013, the Supreme Court decided Adoptive Couple v. Baby Girl, holding that the Indian Child Welfare Act did not permit the Cherokee father in that case to object to termination of his parental rights. The case was ostensibly about a dispute between prospective adoptive parents and a biological father. But this Article demonstrates that it was about a lot more than that. It was a microcosm of anxieties about Indianness, race, and the changing nature of parenthood. While made in the name of the child, moreover, the decision supports practices and policies that do not forward and …

Do Automated Trading Systems Dream Of Manipulating The Price Of Futures Contracts? Policing Markets For Improper Trading Practices By Algorithmic Robots, Gregory Scopino

Florida Law Review

This Article seeks to determine if the CFTC needs new tools to combat disruptive, manipulative, or otherwise harmful trading practices that originate solely from the “minds” of ATSs. Part I of this Article provides a brief regulatory background of the derivatives markets, then examines the increased automation in those markets today, and concludes by looking at the CFTC’s initial responses to the issues raised by automation. Part II briefly looks at the law concerning different mental states for causes of action. Part III examines the CFTC’s pre and post-Dodd–Frank Act tools to police disruptive and manipulative trading practices, which are …

Bargaining For Development Post-Koontz: How The Supreme Court Invaded Local Government, Sean F. Nolon

Florida Law Review

The U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District injected significant confusion into negotiations over land development approvals. The principal source of this confusion is the majority’s unwillingness to clarify when and how a proposed condition offered in a negotiation becomes a demand that triggers heightened scrutiny under the Takings Clause of the Fifth Amendment. The Court decided that government demands made prior to a later denial must be evaluated in the same manner as conditions imposed as part of an approval. Specifically, conditions designed to mitigate harmful development impact that are demanded from an …

In The Name Of Patent Stewardship: The Federal Circuit's Overreach Into Commercial Law, Xuan-Thao Nguyen

Florida Law Review

While the U.S. Court of Appeals for the Federal Circuit has admirably commandeered its stewardship of patent law—Congress bestowed the Federal Circuit with exclusive jurisdiction over patent appeals since 1982—the court has unabashedly extended its reach, unwelcomed, into commercial law. Camouflaged in the name of patent stewardship, the Federal Circuit’s foray into commercial law has yielded unexpected and unjustifiable results. This Article argues that, paradoxically, to maintain its stewardship of patent law, the Federal Circuit should not invoke patent law to rationalize its decisions concerning commercial law, which have dramatically altered established commercial law. This encroachment into commercial law, which …

Trust Term Extension, Reid Kress Weisbord

Florida Law Review

Over the last thirty years, most jurisdictions in the United States have repealed or abrogated the Rule Against Perpetuities, which prohibits perpetual donor control over property. This, in turn, has led estate planning practitioners to consider whether a trust created to comply with the Rule could, after the Rule’s repeal, be extended in perpetuity to provide for future generations of the settlor’s descendants upon petition of the trustee. Trust term extension in this context implicates fundamental questions about the purpose of a trust: For whose benefit—the beneficiaries’, the settlor’s, or the trustee/fiduciary’s—does the trust exist? This Article argues that the …

The New Way Of War: Is There A Duty To Use Drones?, Oren Gross

Florida Law Review

Part I of this Article briefly describes the newest battlespace occupants. Robotic systems have been taking active part in combat. They now inhabit the air, the land, and the sea. They carry out missions ranging from surveillance and bomb disposal to “destroy and disable.” Part II examines the relevant principles of LOAC. It argues that drones are not, per se, unlawful under LOAC. Rather, the critical question is the same for drones as for other types of weapons, i.e., whether the specific use of the weapon complies with LOAC. In this context, the weapon must be deployed in accordance with …