Law Commons^™

The Illusion Of Autonomy In Women's Medical Decision-Making, Jamie R. Abrams

Florida State University Law Review

This Article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy.

This Article instead considers the …

Partitioning And Rights: The Supreme Court's Accidental Jurisprudence Of Democratic Process, James A. Gardner

Florida State University Law Review

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account—a theory—of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost …

Copyright's Mercantilist Turn, Glynn S. Lunney, Jr.

Florida State University Law Review

Over the last twenty years, arguments for broader copyright have taken an increasingly mercantilist turn. Unable to establish that broader copyright will lead to more or better original works, as the Constitution and the traditional economic framework require, proponents have begun arguing for broader copyright on the basis of revenue and jobs. Rampant unauthorized copying is theft or piracy, proponents insist, depriving copyright owners of revenue and destroying jobs. Whether or not it leads to more or better works, broader copyright will increase revenue to copyright owners and thus increase employment in the copyright industries. This increased employment, on its …

Work Made For Hire -- Analyzing The Multifactor Balancing Test, Ryan Vacca

Florida State University Law Review

Authorship of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer, not the employee, being the author and initial copyright owner. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, set forth a list of factors to distinguish employees from independent contractors. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. …

Balancing National Security Policy: Why Congress Must Assert Its Constitutional Check On Executive Power, Rebecca Lightle

Florida State University Law Review

No abstract provided.

A Tribute To Professor Dan Markel, Keith L. Savino

Florida State University Law Review

No abstract provided.

The Failure And Future Of Lake Okeechobee Water Releases: A Quasi-Governmental Solution, Jacquelyn A. Thomas

Florida State University Law Review

No abstract provided.

Dan Markel's Premature Death Cements His Uncompromising Legacy, Ryan Wechsler

Florida State University Law Review

No abstract provided.

Losing Friends, Garrick Pursley

Florida State University Law Review

No abstract provided.

The Cost Of Avoidance: Pluralism, Neutrality, And The Foundations Of Modern Legal Ethics, Melissa Mortazavi

Florida State University Law Review

This Article offers an answer to key questions in modern American legal ethics: when and why did the legal profession stop talking about professional conduct in moral terms? Mining the history of current rules governing lawyer conduct, this Article reveals that while the 1969 Model Code of Professional Responsibility sought to revolutionize legal ethics by creating a professional code that was more transparent, democratized, and less hierarchical than the preceding 1908 Canons of Legal Ethics, that effort also excised a moral understanding of lawyering in order to facilitate a particular understanding of pluralism.

The drafters of the 1969 Model Code …

Aggregating Defendants, Greg Reilly

Florida State University Law Review

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and Bit-Torrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to …

Making Room For Cooperative Innovation, Liza S. Vertinsky

Florida State University Law Review

Patent law, created in response to a constitutional mandate to encourage innovation, may be discouraging important forms of cooperative innovation. Advances in technology have enabled new ways of pooling knowledge and computational capabilities, facilitating cooperation among many participants with complementary skills and motivations to collectively solve complex problems. But emerging models of cooperative innovation increasingly run into patent roadblocks.

Why might patent law sometimes thwart instead of support socially beneficial cooperative innovation? The problem lies in the tensions between the market-based incentives that patent law creates and the mechanisms that support emerging models of cooperative innovation. The complexity and cost …

Impaired Physicians And The Scope Of Informed Consent: Balancing Patient Safety With Physician Privacy, Sarah Haston

Florida State University Law Review

No abstract provided.

Consequences Too Harsh For Noncitizens Convicted Of Aggravated Felonies?, Erica Steinmiller-Perdomo

Florida State University Law Review

No abstract provided.

Durbin Amendment To The Dodd Frank Act: Two Caps Are Better Than One For Debit Card Interchange Fees, Maureen Kane

Florida State University Law Review

No abstract provided.

Raising The Floor Of Company Conduct: Deriving Public Policy From The Constitution In An Employment-At-Will Arena, Steven J. Mulroy, Amy H. Moorman

Florida State University Law Review

No abstract provided.

National Security Rulemaking, Robert Knowles

Florida State University Law Review

Agencies performing national security functions regulate citizens’ lives in increasingly intimate ways. Yet national security rulemaking is a mystery to most Americans. Many rules—like those implementing the National Security Agency’s vast surveillance schemes—remain secret. Others are published, but the deliberations that led to them and the legal justifications for them remain hidden.

Ordinarily, these rules would undergo the Administrative Procedure Act’s notice-and-comment process, which has earned wide, if not universal, praise for advancing democratic values and enhancing agency effectiveness. But a national security exception from notice-and-comment in the APA itself, along with the overuse of classification authority, combine to insulate …

The New Racial Justice: Moving Beyond The Equal Protection Clause To Achieve Equal Protection, Emily Chiang

Florida State University Law Review

Since handing down Washington v. Davis and Arlington Heights v. Metropolitan Housing Development, the United States Supreme Court has significantly curtailed the ability of plaintiffs to bring disparate impact claims under the Equal Protection Clause. Many academics continue to talk about the standards governing intent and disparate impact. Some recent scholarship recognizes that reformers on the ground have shifted away from equality-based claims altogether. This Article contends that civil rights advocates replaced the old equal protection framework some time ago and that they did so deliberately and with great success. It expands upon and refines the strategy shift some …

The Origin Of Parental Rights: Labor, Intent, And Fathers, Dara E. Purvis

Florida State University Law Review

Most theories of parentage fail to explain the genesis of the right to parent—for example, why does a biological relationship generate parental rights? This Article shows that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized as legal …

Pay As Risk Regulation, Andrew C.W. Lund

Florida State University Law Review

How do we prevent financial institutions from taking excessive risk when the public fisc serves as creditor? This is one of the central questions left over after the recent financial crisis and, for the past five years, there has been no shortage of proposed answers. Two of the more popular candidates for ex ante regulation—proprietary trading restrictions and enhanced capital requirements—are on their way to being enacted in one form or another, albeit with some controversy over their cost and ultimate efficacy. Meanwhile, a third, more indirect approach has sprouted in the pages of law and finance journals under which …

Retail Investments In Precious And Industrial Metals: Mining For Proper Regulation Aimed Toward Investor Strategy, Tanya Lambrechts

Florida State University Law Review

No abstract provided.

Reconsidering Regulatory Uncertainty: Making A Case For Energy Storage, Amy L. Stein

Florida State University Law Review

This Article begins the complex dialogue that must take place to address the emerging technologies providing energy storage for our electricity grid. Energy storage has the capacity to be a game-changer for many facets of our grid, providing better integration of renewable energy, enhanced reliability, and reduced use of carbon-intensive fuels. Energy storage faces a number of obstacles, however, including technological, financial, and regulatory uncertainty. This Article focuses on the regulatory uncertainty, and defends the proposition that not all regulatory uncertainty is created equal. It argues for differential treatment of this uncertainty, depending on its context, scope, and source, and …

What's New About The New Normal: The Evolving Market For New Lawyers In The 21st Century, Bernard A. Burk

Florida State University Law Review

Everyone agrees that job prospects for many new law graduates have been poor for the last several years; there is rather less consensus on whether, when, how, or why that may change as the economy recovers from the Great Recession. This Article analyzes historical and current trends in the job market for new lawyers in an effort to predict how that market may evolve.

The Article derives quantitative measurements of the proportion of law graduates over the last thirty years who have obtained initial employment for which law school serves as rational substantive preparation (“Law Jobs”). In comparing entry-level hiring …

Avoiding Adversarial Adjudication, Michael T. Morley

Florida State University Law Review

There are a variety of procedural vehicles through which litigants may seek a substan-tive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts pres-ently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the …

Militarized Criminal Organizations And Human Rights Court Review Of State Protection Efforts: Evidence From Colombia, David L. Attanasio

Florida State University Law Review

No abstract provided.

Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent, Jr.

Florida State University Law Review

No abstract provided.

Energy Versus Property, Michael Pappas

Florida State University Law Review

This Article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examin-ing how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing ("fracking"), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The Article then applies this insight to current disputes pitting aggressive renewable energy policies—such as nuisance immunity or mandatory installations on private proper-ty—against fundamental property expectations: the right to exclude and the right to use and …

Are Political Bloggers Weakening The Democratic Election Process By Being Paid To Give You Their "Unbiased" Opinions?, Douglas Mcalarney

Florida State University Law Review

No abstract provided.

If You Rate It, He Will Come: Why Uncle Sam's Recent Intervention With The Credit Rating Agencies Was Inevitable And Suggestions For Future Reform, Nicholas D. Horner

Florida State University Law Review

No abstract provided.