Law Commons^™

Public-Sector Unions, Public Employees: May You Live In Interesting Times, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

The United Nations' Role In Haiti Cholera Outbreak, Lauren Carasik

Media Presence

No abstract provided.

Google Apps Beyond Gmail, Debbie Ginsberg

Presentations

In this Brown Bag, Debbie Ginsberg discussed the other apps in Google Apps for Education, demonstrated using Google Drive to share documents, how to work collaboratively with Google Docs, and how to create simple presentations.

Vol. 43, No. 12 (November 19, 2012)

Indiana Law Annotated

No abstract provided.

Possession Of Child Pornography: Should You Be Convicted When The Computer Cache Does The Saving For You?, Giannina Marin

Florida Law Review

This Note examines the concept of electronic possession in the field of child pornography, with the aim of reconciling the basic intuition behind possession with the reality of electronic data. Part II briefly discusses the case and statutory history that placed child pornography outside the bounds of the First Amendment and led to constitutionally valid prohibitions on the possession of child pornography. Part III sets forth the various ways in which individuals can access electronic child pornography, with a focus on the user’s level of interaction. Part IV discusses factors that the courts have considered in defining what constitutes possession …

Clicking Away Confidentiality: Workplace Waiver Of Attorney-Client Privilege, Adam C. Losey

Florida Law Review

In workplace waiver cases, a schism is quietly developing. Some courts are discreetly (and perhaps inadvertently) abandoning the traditionally accepted narrow interpretation of attorney-client privilege in favor of a broad protective approach on public policy grounds. Others continue to adhere to traditional doctrine. A clash between these two schools of thought may be inevitable. The universal application of a rebuttable presumption that an employee has waived attorney-client privilege could avert a direct collision between these two schools of thought and establish a semblance of predictability in workplace waiver cases.

Part II points out the growing and unspoken abandonment of traditional …

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 …

Damned If You Do, Doomed If You Don't: Patenting Legal Methods And Its Effect On Lawyers' Professional Responsibilities, Stephanie L. Varela

Florida Law Review

This Note argues patent protection should not extend to legal methods because of the professional responsibilities lawyers owe to the profession and to clients. Part II explains why legal methods merit discussion today. To appreciate the effects legal method patents could have on the legal profession, Part II then presents an overview of pertinent patent law and explains how legal methods are likely eligible for patent protection. Part III raises the question whether legal methods should receive patent protection in light of social and economic considerations. Part IV addresses implications for a lawyer’s professional obligations if courts extend patent protection …

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 H. Pryor Jr.

Florida Law Review

My topic today is judicial modesty, which some critics of the federal judiciary might say is an oxymoron. After all, these critics, in recent years, have dubbed it “the imperial judiciary,” “the most dangerous branch,” and “our judicial oligarchy.” Modesty is not a typical charge against the federal courts. After I provide an overview of judicial modesty based on what the Chief Justice and Judge Posner have said about it, I will address two aspects of my work that provide opportunities to display judicial modesty. First, I will address an aspect of the adjudicative work of the courts of appeals: …

Qualified Immunity: When Is A Loss Ultimately A Win?, Michael J. Hooi

Florida Law Review

No abstract provided.

Distilling Minimum Due Process Requirements For Punitive Damages Awards, Benjamin J. Robinson

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

Florida Law Review

No abstract provided.

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

Florida Law Review

This Note suggests that while Calder jurisdiction fits well with some types of antitrust allegations, the Calder analogy weakens when charges of broad-based anticompetitive conduct collide with the long-arm statutes of particular states. The risk of forcing the analogy too far, of course, is a violation of due process. Part II of this Note reviews the facts and holding of Calder, and some of the key cases that followed it. Part III addresses the question of how the effects test might be different for antitrust complaints. Part IV reviews one type of anticompetitive conduct that seems to place particular …

The Gunslinger To The Ivory Tower Came: Should Universities Have A Duty To Prevent Rampage Killings?, Ben "Ziggy" Williamson

Florida Law Review

Virginia Tech was not the first university rampage killing for which victims or their families sought compensation, nor is it likely to be the last. Because the current state of the law is unclear, this Note explores whether universities should have a duty to identify and thwart students that pose a threat to the lives of other students. Part II traces the history of university rampage killings and the sparse legal history surrounding them. In light of that sparse legal history, Part III considers the Tarasoff case and its progeny, which impose upon some professionals a duty to protect third …

Constitutional Advocacy Explains Constitutional Outcomes, Stephen A. Higginson

Florida Law Review

This Article seeks to show that scholars, especially constitutional scholars, must pay more attention to the ways advocates frame their controversies at the "capital of the world." If the Anti-federalists' prophecy was that an overly complex constitution would accrete power around its ambiguities, then the perpetual refinement of the Constitution by lawyers in controversy—from article to section to sentence to clause to phrase to word—has given the best protection against inflexibility. This thesis is timely because lawyering is more accessible with the Court's recent decision to post oral arguments "on the same day an argument is heard by the Court." …

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 …

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

This Note examines the strange history of the year-and-a-day rule from the rule’s birth to its death and then to its unexpected resurrection. In the process, this Note discusses the approach that other courts have taken to problems similar to those arising in the Wells case and sheds light on the course that the Florida courts may take on this bizarre issue.

This Note presents the Wells case only as an illustration of the legal issues entwined with the abolition of the year-and-a-day rule. Specifically, the Wells case shows how, once abolished, the rule managed to find its way back …

Much Ado About Nothing? The Antitrust Implications Of Private Equity Club Deals, Jessica Jackson

Florida Law Review

This Note addresses the antitrust issues that clubbing raises and argues that the antitrust laws should not restrict clubbing—absent some egregious conduct—and that courts should apply rule of reason analysis rather than per se rules to these sorts of antitrust claims. Part II provides a general background of antitrust law and the various standards that courts apply to private equity clubs. Part III explains private equity and fleshes out what a club deal is and how it works. Part IV discusses antitrust law within the context of joint ventures and sets out the varying standards that could apply to private …

The Like-Kind Exchange Equity Conundrum, Bradley T. Borden

Florida Law Review

The tax-free treatment of like-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 …

Reining In Abuses Of Executive Power Through Substantive Due Process, Rosalie Berger Levinson

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, public-school 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 …

Confusion And Unpredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann M. 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

Substantive Due Process: Sex Toys After Lawrence, Michael J. Hooi

Florida Law Review

No abstract provided.

Florida's Eminent Domain Overhaul: Creating More Problems Than It Solved, Scott J. Kennelly

Florida Law Review

This Note initially discusses how the Florida Legislature’s reaction to Kelo v. City of New London was unnecessary. However, accepting that the legislature felt the influence of the body politic to enact significant eminent domain reform, this Note argues that the legislature did not fully consider the consequences of its actions. Instead, the legislature’s measures were overly broad and created ambiguity. Additionally, the measures will have unintended consequences that could leave landowners and the community worse off than under the previous system. Finally, this Note offers solutions that would both provide Florida with a more comprehensive eminent domain framework and …

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 Ubiquity Of Greed: A Contextual Model For Analysis Of Scienter, Ann Morales Olazábal, 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) requires that 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: …

Substantive Due Process Limits On Punitive Damages Awards: "Morals Without Technique"?, 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 …

Three Faces Of Supplemental Jurisdiction After The Demise Of United Mine Workers V. Gibbs, C. Douglas Floyd

Florida Law Review

In a post-Gibbs world, three competing views of the permissible scope of federal subject matter jurisdiction over non-diverse state law claims have emerged. First, a “delegation” model, which reads the Constitution to have delegated to Congress an apparently unrestricted power to define the scope of an Article III case or controversy, provided at least one claim in the action falls within the scope of Article III. Second, a “factual relationship” model, which seeks to give more precise content to Gibbs’s “common nucleus of operative fact” standard and to distinguish it from the “same transaction or occurrence” joinder standard …

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

In a “cut-and-paste” Internet environment where plagiarism is easier than ever, academic institutions face the daunting challenges of promoting honesty and respect for the work of others and of ensuring the integrity of the learning and grading processes. Many academic institutions have accordingly turned to commercial plagiarism prevention and detection services, such as those provided by a company called Turnitin. Yet those institutions that use the Turnitin system may be fostering infringement of the intellectual property rights of their students. When Virginia’s McLean High School recently announced plans to use Turnitin, students balked and collected 1,190 student signatures on a …