Law Commons^™

The Limited Standing Rule Of Chapter 380: Substantial Interests Lost In The Process, Jaimie A. Ross

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Proponents' Standing To Defend Their Ballot Initiatives: Post-Hollingsworth Work-Arounds?, Nat Stern, John S. Caragozian

Scholarly Publications

No abstract provided.

What Personal Jurisdiction Doctrine Does -- And What It Should Do, Katherine Florey

Florida State University Law Review

Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine. Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court's assertion of power over a particular defendant and case may have two undesirable consequences. First the burden on the defendant of having to appear before a certain type of court or in a particular location may be unacceptably high. Second a court's jurisdictional overreaching may encroach upon the sovereignty of other states or nations and in so doing, may foster uncertainty about which sovereign's …

Stays Of Injunctive Relief Pending Appeal: Why The Merits Should Not Matter, Jill Wieber Lens

Florida State University Law Review

In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.

Stays play an important …

The Indefinite Deflection Of Congressional Standing, Nat Stern

Scholarly Publications

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. Leading scholars in the field of congressional standing immediately expressed doubt that courts would entertain a suit seeking to compel enforcement of these provisions. This Article argues that the premise that suits of this sort can be maintained rests on a tenuous understanding of the Supreme Court's fitful treatment of standing by Congress or its members to sue the Executive.

The Court has never issued …

Ordering Proof: Beyond Adversarial And Inquisitorial Trial Structures, Emily Spottswood

Scholarly Publications

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to …

The Perils Of Productivity, Emily Spottswood

Scholarly Publications

This Essay urges that those who seek to minimize delay in litigation should proceed with greater caution. Productivity reform proponents usually assume that an increase in case processing speed can be purchased at little cost to other procedural values, but this may not be the case. Such reforms may lower the quality of lawyers’ case preparation and worsen the quality of judicial decisions. The extent of these effects is unclear because the proponents of such changes have not made an effort to establish that increases in speed can be achieved without undermining the accuracy of litigation outcomes. Relatedly, it is …

Evidence-Based Litigation Reform, Emily Spottswood

Scholarly Publications

No abstract provided.

Live Hearings And Paper Trials, Emily Spottswood

Scholarly Publications

This Article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing or trial, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing live testimony than if the judges were to review …

Establishing The Truth On Facts: Has The Chinese Civil Process Achieved This Goal?, Zhong Jianhua, Yu Guanghua

Florida State University Journal of Transnational Law & Policy

No abstract provided.

The Doctrine Of Judicial Estoppel, Steve R. Johnson

Scholarly Publications

The doctrine of judicial estoppel is not on some lawyers’ radar screens. That’s regrettable. Not anticipating application of the rule, a person may make a claim that can hurt him or her in the long run. Or, unaware of the rule, a party may fail to assert a potentially successful defense. Or, having only a very general awareness of the rule, an attorney may miss subtleties or forum variations that are the difference between winning and losing.

This article has three parts. Part I describes the doctrine of judicial estoppel, emphasizing its purposes. Part II explores the recent judicial estoppel …

Discovery In Summary Assessment Proceedings, Steve R. Johnson

Scholarly Publications

When the collection of tax could be imperiled by going through the usual deficiency procedures, the IRS may make a jeopardy assessment or a termination assessment (hereinafter sometimes called “summary assessment”) and proceed immediately to collection. To prevent the misuse of this power, section 7429 provides affected taxpayers expedited administrative and judicial review. The IRS has made tens of thousands of jeopardy and termination assessments over the years, and there are hundreds of court decisions in litigated section 7429 cases.

The unique nature of jeopardy and termination assessments makes section 7429 proceedings very different from typical tax litigation. This article …

Confidentiality, Privilege And Rule 408: The Protection Of Mediation Proceedings In Federal Court, Charles W. Ehrhardt

Scholarly Publications

No abstract provided.

Allowing Improper Argument Of Counsel To Be Raised For The First Time On Appeal As Fundamental Error: Are Florida Courts Throwing Out The Baby With The Bath Water?, Larry A. Klein

Florida State University Law Review

No abstract provided.

Unsettled Standing: Who (Else) Should Enforce The Duties Of Charitable Fiduciaries?, Rob Atkinson

Scholarly Publications

No abstract provided.

Interest Groups, Contracts And Interest Analysis, Erin O'Hara O'Connor, Larry E. Ribstein

Scholarly Publications

No abstract provided.

Florida's Equal Access To Justice Act: How The Courts And Doah Have Interpreted It, Mary W. Chaisson

Florida State University Law Review

No abstract provided.

Sovereignty And Personal Jurisdiction Doctrine: Up The Stream Of Commerce Without A Paddle, Pamela J. Stephens

Florida State University Law Review

No abstract provided.

Stare Decisis Among And Within Florida's District Courts Of Appeal, Taylor Mattis

Florida State University Law Review

No abstract provided.

Florida's Partial Final Judgment Rule: Problems And Solutions, Kent R. Putnam

Florida State University Law Review

Florida's partial final judgment rule creates uncertainty for attorneys and their clients. The author of this Article proposes solutions ranging from changes in terminology to amendments to the rule.

In Re Rules Of Civil Procedure, Rule 1.442 (Offer Of Judgment), 550 So. 2d 442 (Fla. 1989), Roseanna J. Lee

Florida State University Law Review

No abstract provided.

An Un-Fortune-Ate Decision: The Aftermath Of The Supreme Court's Eradication Of The Relation-Back Doctrine, Lawrence A. Epter

Florida State University Law Review

In Schiavone v. Fortune, the United States Supreme Court held that the "period provided by law for commencing the action" language of the Federal Rule of Civil Procedure 15(c) includes the statutory limitation period, but not the time allowed for service of process. After demonstrating that this interpretation of Rule 15(c) is unreasonable, the author of this Article examines the various ways that federal courts have dealt with the decision. In light of the confusion and inequities which have resulted, the author suggests two ways of effecting a more just and sensible reading of Rule 15(c).

Work Product Privilege And Discovery Of Expert Testimony: Resolving The Conflict Between Federal Rules Of Civil Procedure 26(B)(3) And 26(B)(4), Jan W. Henkel, O. Lee Reed

Florida State University Law Review

When an attorney furnishes documents containing work product to an expert witness, a potential conflict arises between the work product immunity of Rule 26(b)(3) and the expert discovery provisions of Rule 269b)(4). In this Article, Professors Henkel and Reed examine the approaches federal courts have taken to this conflict. They argue that any approach which either allows for the discovery of documents containing work product or allows for the discovery of document from which product has been expunged is contrary to the purposes of the federal rules. The authors then propose a solution to this conflict which protects both the …

Repuation And Character In Defamation Actions, Charles W. Ehrhardt

Scholarly Publications

No abstract provided.

Burger King Corp. V. Rudzewicz, 105 S. Ct. 2174 (1985), Robert C. Shearman

Florida State University Law Review

Civil Procedure-PERSONAL JURISDICTION-DUE PROCESS LIMITS THE REACH OF FLORIDA'S LONG-ARM STATUTE IN BRINGING CONTRACT DEFENDANTS TO THE HOME OF THE WHOPPER

Procedural Issues In Raising A Constitutional Taking Claim: Trends In Florida Law, Robert P. Banks

Florida State University Law Review

No abstract provided.

Rule 1.540(B), Florida Rules Of Civil Procedure: In Search Of An Equitable Standard Of Relief From Fraud, C. Timothy Gray

Florida State University Law Review

No abstract provided.

Florida's Approach To Choice-Of-Law Problems In Tort, Harold P. Southerland, Jerry J. Waxman

Florida State University Law Review

No abstract provided.

Vanbibber V. Hartford Accident & Indemnity Insurance Co., 439 So. 2d 880 (Fla. 1983), Brian G. Pincket

Florida State University Law Review

Insurance/Civil Procedure-STATUTE WHICH PROHIBITS THE JOINDER OF LIABILITY INSURER IN AN ACTION AGAINST ITS INSURED HELD CONSTITUTIONAL

Mercer V. Raine, 443 So. 2d 944 (Fla. 1983), Adam Tebrugge

Florida State University Law Review

Civil Procedure-DISCOVERY SANCTIONS-TRIAL COURT'S IMPOSITION OF DEFAULT JUDGMENT FOR WILLFUL NONCOMPLIANCE WITH DISCOVERY ORDER WILL BE AFFIRMED DESPITE SUBSEQUENT OFFER OF COMPLIANCE. APPLICABLE STANDARD OF APPELLATE REVIEW IS "CLEAR" ABUSE OF DISCRETION