Law Commons^™

Possession, Child Pornography, And Proportionality: Criminal Liability For Aggregate Harm Offenses, Anthony M. Dillof

Florida State University Law Review

Federal prosecutions of individuals for possessing child pornography have risen steadily and dramatically over the last twenty years. As the number of prosecutions have increased, so have the penalties. Today a typical defendant charged with possessing child pornography can expect a seven-year prison sentence. This Article considers the question of whether such sentences are just, fair, and proportionate. To answer this question, this Article adopts a retributivist perspective on punishment. Retributivism, in turn, requires evaluating the wrongfulness of the conduct to be punished. This Article argues that while the possession of child pornography by a large group of persons in …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Florida State University Law Review

No abstract provided.

Big Brother Or Big Pharma: The Lion Fight Over The Surveillance And Promotion Of Pharmaceutical Use In America, Patrick Bailey

Florida State University Law Review

No abstract provided.

Oil And Reform A La Mexicana, John Baker

Florida State University Law Review

Mexico’s recent Energy Reform sent a shock to upend its seventy-five-year-old petroleum monopoly, hoping to cure the ailing industry with injections of foreign investment. Mexico sought to undo a history of state control overnight, but present challenges show that history cannot be undone so easily. This Note addresses the practical significance of the Reform within the context of Mexico’s tumultuous oil history. This context aids in defining the cause and contours of post-Reform challenges to measure future expectations accordingly. The Reform was a necessary step that required herculean efforts to effectuate; however, future growth will require sustained efforts. Long-term economic …

Typology Of Public-Private Equity, Sung Eun (Summer) Kim

Florida State University Law Review

Private equity, which pools funds for investment in private businesses, is one of the largest and fastest growing investment opportunities in the markets today. Private equity traditionally sought investments exclusively from sophisticated investors such as high net worth individuals and institutional investors. More recently, however, a growing number of private equity businesses have gone public and opened their doors to public investors, who are drawn to these investments because of the possibility of high returns and the opportunity to diversify their investment portfolios. In this Article, I review the universe of public-private equity (or PPE) businesses that are traded on …

The Polarization Of Reproductive And Parental Decision-Making, Jamie R. Abrams

Florida State University Law Review

Women’s abortion and parental decision-making in child rearing are constructed as polarized methods of decision-making in law, politics, and society. Women’s abortion decision-making is understood as myopic and individualistic. Parental decision-making is understood as sacrificial and selfless. This polarization leaves reproductive decision-making isolated, marginalized, and vulnerable while parental decision-making is essentialized, protected, and revered. Both framings are inaccurate and problematic. A unified family decision-making framework that aligns abortion decision-making and parental decision-making reveals that both forms of decision-making are more multi-dimensional, relational, and family-centered than currently understood. This Article exposes the ground to be gained by crossing longstanding boundaries in …

A Blast From The Past: Seismic Airgun Policy And The Need For Reform, Janaye Garrett

Florida State University Law Review

No abstract provided.

Rethinking Targeted Killing Policy: Reducing Uncertainty, Protecting Civilians From The Ravages Of Both Terrorism And Counterterrorism, Shiri Krebs

Florida State University Law Review

Targeted killing is a lethal and irreversible counterterrorism measure. Its use is governed by ambiguous legal norms and controlled by security-oriented decisionmaking processes. Oversight is inherently limited, as most of the relevant information is top secret. Under these circumstances, attempts to assess the legality of targeted killing operations raise challenging, yet often undecided, questions, including: How should the relevant legal norms be interpreted? How unequivocal and updated must the evidence be? And, given the inherent limitations of intelligence information, how should doubt and uncertainty be treated?

Based on risk analysis, organizational culture and biased cognition theories, as well as on …

The Uncharted Waters Of Competition And Innovation In Biological Medicines, Erika Lietzan

Florida State University Law Review

In 2010, Congress fundamentally changed how federal law encourages the discovery and development of certain new medicines and for the first time authorized less expensive “duplicates” of these medicines to be approved and compete in the marketplace. The medicines at issue are biological medicines—generally, medicines made from, or grown in, living systems. Many of the world’s most important and most expensive medicines for serious and life-threatening diseases are biological medicines. Today, that law is beginning to bear fruit; FDA has begun to approve the first of these duplicates, called “biosimilars,” and the products have begun to enter the marketplace.

We …

Harnessing Energy Markets To Conserve Natural Resources? The Case Of Southern U.S. Forests, Blake Hudson

Florida State University Law Review

Wood pellet production facilities have spread rapidly across the southeastern United States over the last decade, a market driven largely by electricity generators in Europe converting from coal-fired to wood pellet-fired boilers. This has raised concerns that non-timber values of southern U.S. forests are at risk and that CO2 emissions from burning carbon-based products will continue to exacerbate climate change. One element left out of the analysis regarding whether wood pellet market development is a net environmental positive or negative, however, is the likelihood that forestland will be converted to non-forest uses if Southern landowners do not have adequate markets …

Intermediate Scrutiny For Corporate Political Contributions, Joseph K. Leahy

Florida State University Law Review

A corporation contributes to a Super PAC that supports a candidate for public office. A shareholder sues, alleging that management breached its duty of loyalty by making the contribution to promote its own political views rather than to serve the corporation’s best interests—i.e., by acting in bad faith. What standard will a Delaware court apply when reviewing management’s decision to cause the corporation to make the contribution?

Myriad scholars have opined that the court will apply the standard of review for ordinary business decisions: the management-friendly business judgment rule. Unfortunately for our shareholder plaintiff, this rule presumes that management acts …

Employment Discrimination And The Domino Effect, Laura T. Kessler

Florida State University Law Review

Employment discrimination is a multidimensional problem. In many instances, some combination of employer bias, the organization of work, and employees’ responses to these conditions, leads to worker inequality. Title VII does not sufficiently account for these dynamics in two significant respects. First, Title VII’s major proof structures divide employment discrimination into discrete categories, for example, disparate treatment, disparate impact, and sexual harassment. This compartmentalization does not account for the fact that protected employees often concurrently experience more than one form of discriminatory exclusion. The various types of exclusion often add up to significant inequalities, even though seemingly insignificant when considered …

Marriage Equality: The Paralleled Progress Between Public Approval And Supreme Court Decisionmaking, Riley Erin Fredrick

Florida State University Law Review

No abstract provided.

Privacy In Taxation, Michael Hatfield

Florida State University Law Review

No abstract provided.

Saying Yes: Reviewing Board Decisions To Sell Or Merge The Corporation, Franklin A. Gevurtz

Florida State University Law Review

No abstract provided.

Relational Criminal Liability, Steven R. Morrison

Florida State University Law Review

“Relational criminal liability,” or one person’s criminal liability for the actions of another by way of a group of which both individuals are a part, generates a fundamental tension between collectivist and individualist approaches to liability. The collectivist approach, which reifies the group qua group, enables individuals to be liable for the acts of the group and the group to be liable for the acts of individuals. The individualist approach treats ind-viduals qua individuals, holding them liable only for their own conduct.

This tension sounds both in moral philosophy and legal theory. As to philosophy, Michael Bratman, Margaret Gilbert, and …

Cybersecurity For Infrastructure: A Critical Analysis, Eldar Haber, Tal Zarsky

Florida State University Law Review

Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in …

Major League Soccer As A Case Study In Complexity Theory, Steven A. Bank

Florida State University Law Review

Major League Soccer has long been criticized for its “Byzantine” roster rules and regulations, rivaled only by the Internal Revenue Code in its complexity. Is this criticism fair? By delving into complexity theory and the unique nature of the league, this Article argues that the traditional complaints may not apply in the context of the league’s roster rules. Effectively, critics are applying the standard used to evaluate the legal complexity found in rules such as statutes and regulations when the standard used to evaluate contractual complexity is more appropriate. Major League Soccer’s system of roster rules is the product of …

Innovation And Reverse Payments, Ramsi A. Woodcock

Florida State University Law Review

Settlements of patent litigation between branded and generic drug makers that include a promise by the generic maker to stay out of the market, sometimes in exchange for a ‘reverse’ payment, increase the profits of drug makers at the expense of consumers. Some commentators argue that drug makers will invest these profits in innovation, ultimately making consumers better off. Drug market data suggest, however, that the resulting gains to consumers may still be insufficient to offset consumer losses from delayed access to generics. Even when innovation is taken into account, antitrust can most efficiently eliminate the risk of consumer harm …

Expectations In The Mirror: Lawyer Professionalism And The Errors Of Mandatory Aspirations, Keith W. Rizzardi

Florida State University Law Review

For years, Florida has been a leader in the professionalism movement, and state leaders have created new documents and standards to make professionalism enforceable. The rest of the nation can learn from Florida’s errors, because the Sunshine State has blurred the lines between professionalism and legal ethics. In fact, history shows that Florida is simply repeating the same mistakes that have been addressed time and time again as our system of legal ethics has evolved. At times, Florida’s professionalism concepts even contradict themselves. Indeed, from a jurisprudential perspective, even H.L.A. Hart and Lon Fuller—who otherwise disagreed over the morality of …

Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson

Florida State University Law Review

The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.

These discussions overlook and this Note confronts …

Equity In Llc Law?, Mohsen Manesh

Florida State University Law Review

To what extent does equity play a role in LLC law? To what extent do courts retain the judicial discretion “to do right and justice” in circumstances in which the LLC statute and the applicable LLC agreement do not otherwise offer an adequate remedy to an aggrieved LLC member or manager? Until recently, the answer to these questions was quite clear: Equity is subordinate to the freedom of contract and the express terms of the agreement governing an LLC. But the Delaware Chancery Court’s decision in In re Carlisle Etcetera has upended this basic precept of LLC law and practice. …

Fixing A Broken Common Law -- Has The Property Law Of Easements And Covenants Been Reformed By A Restatement?, Ronald H. Rosenberg

Florida State University Law Review

No abstract provided.

Weapons Of The Weak: The Prosecutor Of The Icc's Power To Engage The Un Security Council, C. Cora True-Frost

Florida State University Law Review

No abstract provided.

Federalizing Retroactivity Rules: The Unrealized Promise Of Danforth V. Minnesota And The Unmet Obligation Of State Courts To Vindicate Federal Constitutional Rights, Ruthanne M. Deutsch

Florida State University Law Review

No abstract provided.

Relationship Status? It's Complicated: Redefining Sexuality In The Workplace In Light Of Obergefell And The Eeoc, Patrick Bailey

Florida State University Law Review

No abstract provided.

Rethinking Body Property, Kara W. Swanson

Florida State University Law Review

Body products, including blood, gametes, and kidneys, are a routine part of contemporary medicine. They are also controversial. There is a strong preference for donated gifts, based on an intuition that gifts are pure, altruistic, and healthy, and that purchased products (commodities) are tainted, exploitative, and dangerous. Law and policy reflect this dichotomy, preventing market exchanges either by declaring body products non-property or banning sales by the supplying body. Yet with growing scarcity leading to injustice in the allocation and harvesting of body products, calls to allow sales have been increasing, motivating proposals to increase supplies by compensating bone marrow …

Rethinking Victim-Based Statutory Sentencing Enhancements, Kevin Bennardo

Florida State University Law Review

Punishment enhancements that are triggered by some trait of the victim are deeply en-trenched in American criminal statutes. The research underlying this Article identified over 120 distinct traits that a victim could possess that would statutorily enhance the offender’s punishment. These enhancements are often based on an inherent trait of the victim (e.g., age, disability), the victim’s occupation (e.g., law enforcement officers, utility workers), or a non-occupational role-based undertaking (e.g., jurors, visitors at a detention center).

This Article argues that such victim-based statutory enhancements should be eliminated. First, they are dreadfully inegalitarian. These enhancements send the message that society prefers …

The Second Amendment Burden: Arming Courts With A Workable Standard For Reviewing Gun Safety Legislation, Melanie Kalmanson

Florida State University Law Review

Two controversial topics; one framework. Jurisprudence surrounding the Second Amendment to the U.S. Constitution lacks a workable standard under which courts are to review gun control legislation. This Note presents an intersectional argument whereby the abortion “undue burden” framework is applied to Second Amendment legislation. Through this approach of applying the abortion framework to gun control legislation, like those recently proposed or discussed, this Note argues that these provisions would likely be constitutional. Though abortion is at the center of this discussion, this Note does not aim to contribute to discourse concerning reproductive rights and accepts prima facie the current-standing …

The Road To The Gettysburg Address, Alfred L. Brophy

Florida State University Law Review

This Article recovers the forgotten ideas about public constitutionalism in seventy published addresses given at cemetery dedications from Supreme Court Justice Joseph Story’s address at Mount Auburn Cemetery in Cambridge, Massachusetts, in 1831, to the addresses by Edward Everett and Abraham Lincoln at Gettysburg in November 1863. It reveals an important, but forgotten, set of ideas that provided a precedent for Lincoln’s Gettysburg Address. Those addresses, including Lincoln’s, reveal the centrality of constitutional values—as opposed to constitutional text—in framing Americans’ interpretation of the Constitution. Pre-Civil War Americans had a vibrant public discussion of constitutional principles, in addition to constitutional text. …