Law Commons^™

Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan

Florida State University Law Review

Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. It is possible that protection from speaker identity discrimination had long been implicit in free speech case law, but has now been given more full-throated …

Suboptimal Human Rights Decision-Making, Richard C. Chen

Florida State University Law Review

The literature on human rights generally assumes that when a state fails to comply with human rights norms, it is because the state’s leaders rationally determined that a violation would maximize the state’s expected utility. Strategies for improving compliance accordingly focus on altering a state’s expected utility calculation either through coercion, which seeks to introduce external incentives that make compliance more attractive, or persuasion, which seeks to recalibrate a state’s underlying preferences. A wide array of social science research, however, has demonstrated that human beings regularly make suboptimal decisions that fail to maximize their expected utility. This so-called behavioral research …

"Law And Justice Are Not Always The Same": Creating Community-Based Justice Forums For People Subjected To Intimate Partner Abuse, Leigh Goodmark

Florida State University Law Review

No abstract provided.

Applying The 'Cuffs: Consistency And Clarity In A Bright-Line Rule For Arrest-Like Restraints Under Miranda Custody, Luis Then

Florida State University Law Review

No abstract provided.

Tax Whistleblower Statute: Obtaining Meaningful Appeals Through The Appropriate Scope Of Review, Matthew R. Stock

Florida State University Law Review

No abstract provided.

Differential Response: A Dangerous Experiment In Child Welfare, Elizabeth Bartholet

Florida State University Law Review

Differential Response represents the most important child welfare initiative of the day, with Differential Response programs rapidly expanding throughout the country. It is designed to radically change our child welfare system, diverting the great majority of Child Protective Services cases to an entirely voluntary system. This Article describes the serious risks Differential Response poses for children and the flawed research being used to promote it as “evidence based.” It puts the Differential Response movement in historical context as one of a series of extreme family preservation movements supported by a corrupt merger of advocacy with research. It argues for reform …

Governing Hydraulic Fracturing Through State-Local Dynamic Federalism: Lessons From A Florida Case Study, Courtney Walmer

Florida State University Law Review

No abstract provided.

Duress As Rent-Seeking, Murat C. Mungan, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Testing Tribe’S Triangle, Justin Sevier

Scholarly Publications

Since its inception, evidence policymakers have vacillated with respect to whether the rule barring hearsay evidence at trial is a doctrine designed to promote decisional accuracy or a doctrine designed to promote procedural justice.

To the extent that policymakers view the rule barring hearsay evidence as promoting decisional accuracy, the rationale for this view stems from the “testimonial triangle” promulgated by Professor Laurence Tribe, which conceptualizes the objections to hearsay evidence at common law. Tribe’s testimonial triangle states that (1) several infirmities lurk behind all testimony provided in court, and (2) testimony based on hearsay is subject to two sets …

The (Non-)Right To Sex, Mary Ziegler

Scholarly Publications

What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project—the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.

By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, this Article offers a new way into the debate. The marriage equality struggle figures …

Florida State Law Alumni Magazine (Spring 2015), Florida State University College Of Law Office Of Development And Alumni Affairs

Alumni Newsletter & FSU Law Magazine

No abstract provided.

Criminal Inflictions Of Emotional Distress, Avlana Eisenberg

Scholarly Publications

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way.

In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it …

Offer And Acceptance In Modern Contract Law: A Needless Concept, Shawn J. Bayern

Scholarly Publications

The fundamental law of contract formation has retained the formalistic character of classical contract law. The offer-and-acceptance paradigm fits poorly with modern contracting practice, and it obscures and complicates contract doctrine. More importantly, extending it threatens to produce undesirable results. Instead of the offer-and-acceptance paradigm, this Essay proposes that contract formation be analyzed using the same general interpretive inquiry that governs other questions concerning the intent of contracting parties.

Analyzing the processes of contract formation in this manner points the way toward a further-reaching reconsideration of the purposes of contract-formation law in the first place. In particular, this Essay proposes …

How Far Does Circular 230 Exceed Treasury’S Statutory Authority?, Steve R. Johnson

Scholarly Publications

Treasury regulations defining the duties of those practicing before the IRS, commonly called Circular 230, are a cornerstone of federal tax practice. Recent judicial decisions, however, raise the genuine possibility that substantial portions of Circular 230 may be invalidated if challenged.

This possibility began to be taken seriously as a result of the 2013 opinion in Loving v. IRS, the 2014 affirmation of that judgment, and the government’s decision not to seek en banc or Supreme Court review. The concerns intensified with the July 2014 decision in Ridgely v. Lew. They may intensify further – or be deflated – by …

Law And Economic Exploitation In An Anti-Classification Age, Hila Keren

Florida State University Law Review

Does our legal system permit the economic exploitation of extreme vulnerability? Focusing on predatory housing loans—a thriving business at the dawn of the twenty-first century—this Article argues that the answer in most cases is yes. Under an individualistic neoliberal paradigm, borrowers are held liable for their contracts, even if they were targeted with predatory practices. Further, borrowers’ attempts to resort to antidiscrimination law, and frame their exploitation as “reverse redlining,” have offered no real answer. An important yet undertheorized explanation for this problem is the impact of the Supreme Court’s anti-classification jurisprudence on lower courts. In an anti-classification age, even …

Non-Marital Families And (Or After?) Marriage Equality, Deborah A. Widniss

Florida State University Law Review

If, as is widely expected, the Supreme Court soon holds that bans on same-sex marriage are unconstitutional, it is almost certain that the decision will rely heavily on the Court’s reasoning in United States v. Windsor. I strongly support marriage equality. However, a decision that amplifies Windsor’s conception of the harm caused by exclusionary marriage rules could set back efforts to secure legal recognition of, and respect for, non-marital families. That is, Windsor rectified a deep inequality in the law—that same-sex marriages were categorically denied federal recognition—but in so doing it embraced a traditional understanding of marriage as superior to …

Cutting Cops Too Much Slack, Wayne A. Logan

Scholarly Publications

Police officers can make mistakes, which, for better or worse, the U.S. Supreme Court has often seen fit to forgive. Police, for instance, can make mistakes of fact when assessing whether circumstances justify the seizure of an individual or search of a residence; they can even be mistaken about the identity of those they arrest. This essay examines yet another, arguably more significant context where police mistakes are forgiven: when they seize a person based on their misunderstanding of what a law prohibits.

Identity Contests: Litigation And The Meaning Of Social-Movement Causes, Mary Ziegler

Scholarly Publications

What do we mean by a right to life? Should—or does—such a right cover only antiabortion claims? Or should the term apply more broadly—to debates about class and welfare, about the death penalty, or even about human rights? In the abortion wars, litigation strategy has helped to dictate the answers to these questions. Historians and legal scholars have studied the tensions between lawyers and the lay actors they represent, chronicling how lawyers modify and even limit the social changes activists demand. By putting the attorney-client relationship center stage, scholars have sometimes obscured an equally important story about how litigation strategy—as …

Government Retention And Use Of Unlawfully Secured Dna Evidence, Wayne A. Logan

Scholarly Publications

No abstract provided.

A Linguistic Justification For Protecting "Generic" Trademarks, Jake Linford

Scholarly Publications

A trademark is created when a new meaning is added to an existing word or when a new word is invented in order to identify the source of a product. This Article contends that trademark law fails in critical ways to reflect our knowledge of how words gain or lose meaning over time and how new meanings become part of the public lexicon, a phenomenon commonly referred to as semantic shift. Although trademark law traditionally turns on protecting consumers from confusing ambiguity, some of its doctrines ignore consumer perception in whole or in part. In particular, the doctrine of trademark …

Standing In The Wake Of Statutes, Mark Seidenfeld, Allie Akre

Scholarly Publications

In Lujan v. Defenders of Wildlife, the Supreme Court held that when Congress creates a legal interest to see that the law is followed, the deprivation of that interest, without more, is insufficient to allow a plaintiff to meet Article III’s standing requirements. Lujan created significant uncertainty about Congress’s ability to influence judicial standing inquiries by creating statutory rights, especially in light of Justice Kennedy’s concurrence and the majority’s footnote seven. This Article argues that Kennedy’s concurrence and footnote seven are best explained by recognizing that Congress is institutionally superior to courts in evaluating the gravity of likely harms …

Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally, Erin Ryan

Scholarly Publications

This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …

Gossiping About Judges, Jordan M. Singer

Florida State University Law Review

Gossip about judges is an essential source of information to civil litigators. Hearing third party assessments of a judge’s personality, demeanor, intelligence, curiosity, and openness to new interpretations of the law can substantially affect a lawyer’s strategic decisions during the course of litigation, and sometimes whether litigation occurs at all. Yet gossip about judges rarely merits mention and has evaded serious study. This Article brings attorney gossip about judges out into the open, identifying its strategic benefits and drawbacks and explaining how attorneys use gossip (and other secondhand information on judges) to anticipate the likely outcome of judicial decisions. It …

Does The Public Care How The Supreme Court Reasons? Empirical Evidence From A National Experiment And Normative Concerns In The Case Of Same-Sex Marriage, Courtney Megan Cahill, Geoffrey Christopher Rapp

Scholarly Publications

Can the Supreme Court influence the public’s reception of decisions vindicating rights in high-salience contexts, like samesex marriage, by reasoning in one way over another? Will the people’s disagreement with those decisions—and, by extension, societal backlash against them—be dampened if the Court deploys universalizing liberty rationales rather than essentializing equality rationales? Finally, even if Supreme Court reasoning does resonate with the people as a descriptive matter, should the Court minimize anxiety-producing characteristics in decisions vindicating civil rights—such as homosexuality in the marriage-equality context—simply in order to assuage the people?

This Article combines constitutional theory and empirical legal analysis to ask …

Signal Vs. Noise: Some Comments On Professor Stein's Theory Of Evidential Efficiency, Emily Spottswood

Scholarly Publications

In this Essay, I examine Professor Stein's intriguing new theory of evidential efficiency, which posits that judges should admit evidence whenever it has a sufficiently high "signal-to-noise ratio." I explore a slightly different definition of the concepts of "signal" and "noise" than Stein, based upon likelihood ratio values rather than the underlying probabilities of events, and I explain why these altered concepts may be analytically superior. Additionally, I call into question the strength of the connection between the signal-to-noise ratio of a piece of evidence and the costs of admitting it at trial. Nevertheless, Stein's project is worthy of great …

Standing Issues In Tax Litigation, Steve R. Johnson

Scholarly Publications

No abstract provided.

Constraining Constitutional Change, David Landau, Rosalind Dixon

Scholarly Publications

No abstract provided.

What Makes Lawyers Happy? A Data-Driven Prescription To Redefine Professional Success, Lawrence S. Krieger, Kennon M. Sheldon

Scholarly Publications

This is the first theory-guided empirical research seeking to identify the correlates and contributors to the well-being and life satisfaction of lawyers. Data from several thousand lawyers in four states provide insights about diverse factors from law school and one’s legal career and personal life. Striking patterns appear repeatedly in the data and raise serious questions about the common priorities on law school campuses and among lawyers. External factors, which are often given the most attention and concern among law students and lawyers (factors oriented towards money and status—such as earnings, partnership in a law firm, law school debt, class …

Marital Contracting In A Post-Windsor World, Martha M. Ertman

Florida State University Law Review

No abstract provided.

Defining A Country's "Fair Share" Of Taxes, Adam H. Rosenzweig

Florida State University Law Review

The international tax regime is facing a defining moment. As stories of multinational companies expatriating and shifting income around the world with seeming impunity continue to emerge, the question of how to divide the international tax base among the countries of the world increasingly draws attention from policy-makers and academics. To date, however, the debate has tended to devolve into one over the two traditional tools used to divide worldwide tax base—transfer pricing and formulary apportionment. This Article demonstrates that such focus is misplaced on the instruments of dividing the worldwide tax base rather than on first principles. Instead, this …