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- As opposed to common law tort actions. After briefly summarizing the case (1)
- Conveys the Court’s preference to confine climate change litigation to agency- and regulatory-focused actions (1)
- However (1)
- In American Electric Power Co. v. Connecticut (AEP) (1)
- Suggesting that state-based claims such as public nuisance could play some part in future climate change litigation. The opinion (1)
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- The U.S. Supreme Court held that “the Clean Air Act and the EPA actions it authorizes displace any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants (1)
- This Comment considers the implications of that preference with regard to the “climate vulnerable”-populations that are disproportionately impacted by the effects of climate change-with a focus on Florida. (1)
- ” foreclosing the use of federal common law rights of action in climate change litigation. The Court left unanswered the question of whether the Clean Air Act also displaces state common law tort actions (1)
Articles 1 - 30 of 63
Full-Text Articles in Law
Possession Of Child Pornography: Should You Be Convicted When The Computer Cache Does The Saving For You?, Giannina Marin
Possession Of Child Pornography: Should You Be Convicted When The Computer Cache Does The Saving For You?, Giannina Marin
Florida Law Review
“For years, defense lawyers have argued the ‘young and stupid’ semidefense for their youthful clients. Now, we can have the ‘I didn’t know it was on the hard drive’ objection for the unsophisticated computer user in child pornography cases—or at least they can in the 9th Circuit.” This quote, appearing on the website of an East Texas criminal defense law firm, refers to the outcome of United States v. Kuchinski. In Kuchinski, the defendant’s computer contained, in various forms, more than 15,000 images of child pornography. There was no question that Kuchinski’s volitional viewing of the images on the Internet …
Clicking Away Confidentiality: Workplace Waiver Of Attorney-Client Privilege, Adam C. Losey
Clicking Away Confidentiality: Workplace Waiver Of Attorney-Client Privilege, Adam C. Losey
Florida Law Review
Barbara Hall, an administrative assistant, often arrives at work an hour and a half early solely to check her personal e-mails on her employer’s computer. Afterwards, “[i]n the grand tradition of Chekhov, or perhaps ‘Days of Our Lives,’ Barbara Hall carries on a dialogue throughout the workday with her two daughters, both of whom work at an event-planning company in Cleveland and use its e-mail system for such exchanges.” When she gets home from work, Barbara continues to use her workplace e-mail account to send personal e-mails. Barbara Hall and her daughters are not alone. The average employee is estimated …
Damned If You Do, Doomed If You Don't: Patenting Legal Methods And Its Effect On Lawyers' Professional Responsibilites, Stephanie L. Varela
Damned If You Do, Doomed If You Don't: Patenting Legal Methods And Its Effect On Lawyers' Professional Responsibilites, Stephanie L. Varela
Florida Law Review
Imagine, before advising each client, having to confer with the U.S. Patent and Trademark Office (USPTO) to determine whether another lawyer already owns a patent to the legal strategy you wish to propose. Imagine having to pay someone so your client can follow legal advice you wish to impart. Worse yet, imagine having to forego the most favorable legal course of action for your client simply because your client cannot afford it! While these possibilities may seem outlandish, this is precisely what courts may soon decide. Judicial affirmation of the patentability of legal strategies could become a stark reality sooner …
Fair Funds And The Sec's Compensation Of Injured Investors, Verity Winship
Fair Funds And The Sec's Compensation Of Injured Investors, Verity Winship
Florida Law Review
The Fair Fund provision of Sarbanes-Oxley allows the SEC to distribute money penalties to injured investors, heralding a new compensatory role for the agency. The SEC has announced that it will direct money to injured investors whenever possible, but has not articulated clear priorities. This Article fills the gap by introducing terms of debate and proposing a framework for the SEC’s exercise of its discretion. The Article introduces the concept of “public class counsel,” a public actor that has the dual function of deterrence and victim compensation. The concept describes—and suggests limits to—the SEC’s role in a system in which …
Student Speech Rights In The Digital Age, Mary-Rose Papandrea
Student Speech Rights In The Digital Age, Mary-Rose Papandrea
Florida Law Review
For several decades courts have struggled to determine when, if ever, public schools should have the power to restrict student expression that does not occur on school grounds during school hours. In the last several years, courts have struggled with this same question in a new context—the digital media. The dramatic increase in the number of student speech cases involving the Internet, mobile phones, and video cameras begs for a closer examination of the scope of school officials’ authority to censor the expression of minors as well as the scope of juvenile speech rights generally. This Article takes a close …
The Perspective Of A Junior Circuit Judge On Judicial Modesty, William Pryor Jr.
The Perspective Of A Junior Circuit Judge On Judicial Modesty, William Pryor Jr.
Florida Law Review
I appreciate the invitation to deliver the Dunwody Lecture this year, and I am grateful that this occasion has allowed me to visit, for the first time, one of the premier law schools in this Circuit and our nation. The Levin College of Law enjoys an excellent reputation for the education of lawyers. It is the alma mater of three judges of our court, and each year top graduates of this college serve our court with distinction as law clerks. I hope this visit will be the first of many to come for me. My topic today is judicial modesty, …
Distilling Minimum Due Process Requirements For Punitive Damages Awards, Benjamin J. Robinson
Distilling Minimum Due Process Requirements For Punitive Damages Awards, Benjamin J. Robinson
Florida Law Review
No abstract provided.
Qualified Immunitity: When Is A Loss Ultimately A Win?, Michael J. Hooi
Qualified Immunitity: When Is A Loss Ultimately A Win?, Michael J. Hooi
Florida Law Review
No abstract provided.
Interpreting I.R.C. § 67(E): The Supreme Court's Attempt To Nail Investment Advisory Fees To The "Floor", Lindsay Roshkind
Interpreting I.R.C. § 67(E): The Supreme Court's Attempt To Nail Investment Advisory Fees To The "Floor", Lindsay Roshkind
Florida Law Review
No abstract provided.
False Statements V. Free Debate: Is The First Amendment A License To Lie In Elections?, Simon A. Rodell
False Statements V. Free Debate: Is The First Amendment A License To Lie In Elections?, Simon A. Rodell
Florida Law Review
No abstract provided.
Does A Cartel Aim Expressly? Trusting Calder Personal Jurisdiction When Antitrust Goes Global?, Larry Dougherty
Does A Cartel Aim Expressly? Trusting Calder Personal Jurisdiction When Antitrust Goes Global?, Larry Dougherty
Florida Law Review
Suppose your law firm represents CrabApple, the large, Californiabased manufacturer of the BuyPod, a portable digital music player. CrabApple also sells songs from its online music store, BuyTunes, for use on the BuyPod. One morning, a class-action antitrust lawsuit lands on your desk. It accuses CrabApple of illegal tying—because the BuyPod is designed to play only music from BuyTunes, and BuyTunes songs only play on BuyPods. CrabApple customers claim the tying has forced them to make unwanted purchases—BuyPod ownersfelt compelled to buy their music from BuyTunes, and anyone who wanted to use BuyTunes had to get a BuyPod. These consumers …
The Gunslinger To The Ivory Tower Came: Should Universities Have A Duty To Prevent Rampage Killings?, Ben "Ziggy" Williamson
The Gunslinger To The Ivory Tower Came: Should Universities Have A Duty To Prevent Rampage Killings?, Ben "Ziggy" Williamson
Florida Law Review
On April 16, 2007, Seung Hui Cho, a Virginia Tech student, went on a rampage across the university’s campus. He murdered thirty-two people —twenty-seven students and five professors—before killing himself. Cho’s rampage was not only the worst mass shooting on an American university campus, it was the worst in American history—twenty-seven students and five professors—before killing Cho’s horrific actions and his highly publicized video manifestos revealed a deeply disturbed personality. But to some students, teachers and administrators, Cho’s nature was not a revelation. Cho’s troubled history included suicidal and homicidal ideation since middle school, violent and disturbing writings, classroom behavior …
Constitutional Advocacy Explains Constitutional Outcomes, Stephen A. Higginson
Constitutional Advocacy Explains Constitutional Outcomes, Stephen A. Higginson
Florida Law Review
In oral argument in Baker v. Carr, Attorney Z.T. Osborn, Jr., on behalf of Tennessee voters arguing that the U.S. Supreme Court should hold legislative apportionment ajusticiable issue, exclaimed that "the motto of the Supreme Court of Tennessee is Fiat justicia ruat caelum; Let justice be done if the skies should fall." With that exhortation, Osborn remarked to the Court, "We have no other place to go. Weare at the capital of the world.
Resolving A "Substantial Question": Just Who Is Entitled To Bail Pending Appeal Under The Bail Reform Act Of 1984?, Doug Keller
Resolving A "Substantial Question": Just Who Is Entitled To Bail Pending Appeal Under The Bail Reform Act Of 1984?, Doug Keller
Florida Law Review
Under the Bail Reform Act of 1984, federal criminal defendants who wish to remain free on bail after conviction must prove that their appeal will have enough merit to raise at least one “substantial question.” Federal appellate courts, however, have been deeply divided over how much merit is required to show that an appeal will raise a “substantial question.” Ten circuits define the phrase as a “close question,” based on an implausible reading of the 1984 Bail Act’s legislative history. But the Ninth Circuit has interpreted the requirement to mean that a defendant must prove that his appeal will raise …
Paradise Lost In The Patent Law? Changing Visions Of Technology In The Subject Matter Inquiry, Dana Remus Irwin
Paradise Lost In The Patent Law? Changing Visions Of Technology In The Subject Matter Inquiry, Dana Remus Irwin
Florida Law Review
In recent decades, the Patent and Trademark Office and the federal courts have dramatically expanded the scope of patentable subject matter—the set of inventions eligible for patent protection. Existing scholarship has taken a narrow view of this expansion. Scholars argue on efficiency grounds that without more meaningful limits on the scope of patentable subject matter, future invention will be impeded rather than encouraged. This Article takes a broader view of the subject matter inquiry, tracing its historical development and its changing theories of technology, from the patent system’s inception to the present. This Article demonstrates that through these theories of …
The Murder Rule That Just Won't Die: The Abolished Year-And-A-Day Rule Continues To Haunt The Florida Courts, Emily S. Wilbanks
The Murder Rule That Just Won't Die: The Abolished Year-And-A-Day Rule Continues To Haunt The Florida Courts, Emily S. Wilbanks
Florida Law Review
On October 21, 1986, a two-month-old baby girl was admitted to a hospital in Pasco County, Florida. Baby Christina Ann Wells was unresponsive, was suffering from seizures, and needed assistance to breathe. Doctors observed large bruises on Christina’s head, including thumbprints on her tiny face. She had broken ribs, and the soft spot on her skull was noticeably bulging. Doctors likened some of Christina’s injuries to those commonly seen in drowning victims. However, Christina had not drowned; doctors determined that Christina’s bruises and the swelling on her brain were caused either by being shaken or by having her oxygen supply …
Much Ado About Nothing? The Antitrust Implications Of Private Equity Club Deals, Jessica Jackson
Much Ado About Nothing? The Antitrust Implications Of Private Equity Club Deals, Jessica Jackson
Florida Law Review
In May 1976, with merely $120,000 and a few metal chairs left behind from a prior tenant, Kolberg Kravis Roberts & Co. (KKR) opened its doors. Though few people outside Wall Street circles knew of this start-up company, by the 1980s its reputation as a takeover machine brought it notoriety. One can only imagine what went on behind closed doors, but whatever happened, it worked. By 1989, KKR had become the largest client of accounting giant Deloitte & Touche, with General Motors following as a close second. The “Age of Leverage” peaked in 1990 when KKR took over RJR Nabisco. …
The Like-Kind Exchange Equity Conundrum, Bradley T. Borden
The Like-Kind Exchange Equity Conundrum, Bradley T. Borden
Florida Law Review
The tax-free treatment oflike-kind exchanges presents one of tax law’s most compelling equity conundrums. Tax law generally does not tax property holders on the property’s appreciation but does tax gain or loss recognized by property sellers and exchangers of non-like-kind property. In the basic Aristotelian system, equity requires that likes be treated alike, but the system does not provide criteria to determine what is alike. Depending upon the criteria, exchangers of like-kind property can be similar either to holders or to sellers and exchangers of non-like-kind property. The equity conundrum asks whether tax law should treat exchangers of like-kind property …
Confusion And Upredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann Scarlett
Confusion And Upredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann Scarlett
Florida Law Review
The Delaware courts responded to the recent wave of corporate scandals, exemplified by Enron and WorldCom, by changing their approach to shareholder derivative litigation. This Article analyzes the Delaware courts’ response to these scandals and concludes that the courts have created doctrinal confusion and introduced unpredictability into derivative litigation. This Article also analyzes the future negative consequences for shareholders, corporations, directors, investors, and other litigants. Finally, this Article proposes improvements for derivative litigation that may alleviate the confusion and unpredictability created by the Delaware courts’ response to the recent scandals
Reining In Abuses Of Executive Power Through Substantive Due Process, Rosalie Berger
Reining In Abuses Of Executive Power Through Substantive Due Process, Rosalie Berger
Florida Law Review
Although substantive due process is one of the most confusing and controversial areas of constitutional law, it is well established that the Due Process Clause includes a substantive component that “bars certain arbitrary wrongful government actions ‘regardless of the fairness of the procedures used to implement them.’” The Court has recognized substantive due process limitations on law-enforcement personnel, publicschool officials, government employers, and those who render decisions that affect our property rights. Government officials who act with intent to harm or with deliberate indifference to our rights have been found to engage in conduct that “shocks the judicial conscience” contrary …
Substantive Due Process: Sex Toys After Lawrence Williams V. Morgan, 478 F.3d 1316 (11th Cir. 2007), Michael J. Hooi
Substantive Due Process: Sex Toys After Lawrence Williams V. Morgan, 478 F.3d 1316 (11th Cir. 2007), Michael J. Hooi
Florida Law Review
No abstract provided.
In Honor Of Walter O. Weyrach: Florida's Eminent Domain Overhaul: Creating More Problems Than It Solved, Scott J. Kennelly
In Honor Of Walter O. Weyrach: Florida's Eminent Domain Overhaul: Creating More Problems Than It Solved, Scott J. Kennelly
Florida Law Review
A knock at your front door wakes you. Blurry-eyed, you open your door to a government official who tells you that the city would like to purchase your home for a price slightly greater than fair market value. According to the official, most of your neighbors have already agreed to sell their homes so that your “distressed” neighborhood can get an economic facelift, which will include a multi-tower condominium complex. While you briefly consider selling, you are bothered that the government will not put your property to what you deem a traditional public use. Quickly remembering that your state representative …
In Honor Of Walter O. Weyrauch: The Case For Overturning Williams V. Florida And The Six-Person Jury: History, Law, And Empirical Evidence, Alisa Smith, Michael J. Saks
In Honor Of Walter O. Weyrauch: The Case For Overturning Williams V. Florida And The Six-Person Jury: History, Law, And Empirical Evidence, Alisa Smith, Michael J. Saks
Florida Law Review
After 700 years of common-law history and nearly 200 years of constitutional history, the Supreme Court concluded that the constitutionally permissible minimum jury size could not be inferred from the language or the history of the Constitution. The answer, said the Court in Williams v. Florida, could be found only through a “functional analysis” of the performance of smaller juries (that is, empirical examination of the behavior of different-sized juries). The Court implicitly abandoned that analysis in Ballew v. Georgia, when it held that juries with fewer than six members were unconstitutional-a decision based on nothing more than the ipse …
In Honor Of Walter O. Weyrauch: The Ubiquity Of Greed: A Contextual Model For Analysis Of Scienter, Ann Morales Olazabal, Patricia Sanchez Abril
In Honor Of Walter O. Weyrauch: The Ubiquity Of Greed: A Contextual Model For Analysis Of Scienter, Ann Morales Olazabal, Patricia Sanchez Abril
Florida Law Review
Some securities fraud plaintiffs contend that greed—in the form of perpetuating a prestigious executive position, ensuring a gainful bonus, or maintaining the appearance of corporate profitability—is a bona fide motive evidencing scienter. But currently, no single judicial standard or analytical rubric guides the analysis of whether allegations of greed indicate scienter in these cases. The Private Securities Litigation Reform Act of 1995 (PSLRA) requiresthat the complaint state “with particularity” facts giving rise to a “strong inference” that the defendant acted with the scienter required for the cause of action. Plaintiffs have long established scienter through “motive and opportunity” pleading: facts …
In Honor Of Walter O. Weyrauch: Substantive Due Process Limits On Punitive Damages Awards: "Morals Without Technique"?, Emily Gold Waldman, F. Patrick Hubbard
In Honor Of Walter O. Weyrauch: Substantive Due Process Limits On Punitive Damages Awards: "Morals Without Technique"?, Emily Gold Waldman, F. Patrick Hubbard
Florida Law Review
In a series of cases decided over the last two decades, the Supreme Court has used the Due Process Clause to establish a procedural and substantive framework for awarding punitive damages. Initially, the substantive aspects of this framework were sufficiently clear and flexible that they required little change in the system and probably generated a helpful level of debate and uniformity as to some basic requirements for awards. However, in BMW of North America, Inc. v. Gore, the Court adopted an approach characterized by a lack of clarity and consistency, an inadequate basis in theory and policy, and ad hoc …
In Honor Of Walter O. Weyrauch: Three Faces Of Supplemental Jurisdiction After The Demise Of United Mine Workers V. Gibbs, C. Douglas Floyd
In Honor Of Walter O. Weyrauch: Three Faces Of Supplemental Jurisdiction After The Demise Of United Mine Workers V. Gibbs, C. Douglas Floyd
Florida Law Review
In United Mine Workers v. Gibbs, the Supreme Court rejected the narrow “cause of action” test announced in Hurn v. Oursler for what was then termed pendent-claim jurisdiction in favor of a broader “common nucleus of operative fact” standard. In subsequent cases, the Court in dicta implied, without deciding, that the same standard might govern other extensions of federal court jurisdiction to non-diverse state law claims incident to federal question or diversity claims falling within Article III of the U.S. Constitution in the related but distinct contexts of “pendent party” and “ancillary” jurisdiction. Meanwhile, cases in the lower courts tended …
Two Wrongs Don't Negate A Copyright: Don't Make Students Turnitin If You Won't Give It Back, Samuel J. Horovitz
Two Wrongs Don't Negate A Copyright: Don't Make Students Turnitin If You Won't Give It Back, Samuel J. Horovitz
Florida Law Review
The story goes something like this: There was a particularly difficult college professor notorious for a low grading scale. After years of low grade following low grade, one paper finally earned a B minus, the highest grade ever awarded by this professor. Word spread about the paper, and the student author sold it to the highest bidder, who later turned in the same paper to the same professor and received a B. The next year, after being recycled yet again, the paper received a B plus. When the paper was recycled and submitted a fourth time, it finally received an …
Tort Arbitrage, Robert J. Rhee
Tort Arbitrage, Robert J. Rhee
Florida Law Review
The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the economic theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is aproper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties’ …
The Elephant In The Room: Dangers Of Hedge Funds In Our Financial Markets, Dustin G. Hall
The Elephant In The Room: Dangers Of Hedge Funds In Our Financial Markets, Dustin G. Hall
Florida Law Review
Hedge funds are our modern titans of industry, and like their predecessors they now represent the best and the worst of the new global economy. These minimally regulated investment entities —in which historically only super-rich investors could have an interest —have recently had profound impacts on financial markets around the world. In early 1992, for example, George Soros, the now-famous hedge fund manager, made it big by using his hedge fund, Soros Fund Management LLC, to leverage a massive bet that the British pound would be ejected from the European Exchange Rate Mechanism. The bet reportedly earned Mr. Soros over …
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Florida Law Review
Nearly twenty years ago in Hazelwood School District v. Kuhlmeier, the Supreme Court, in upholding the constitutionality of a public high school principal’s censorship of a student newspaper produced in a journalism class, held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Since then, Hazelwood’s “reasonably related to legitimate pedagogical concerns” This Article argues that this conundrum can be untangled by returning to Hazelwood’s core as a student speech case. It first …