Law Commons^™

United States V. Woods And The Future Of The Tax Blue Book As A Means Of Penalty Avoidance And Statutory Interpretation, Cole Barnett

Florida Law Review

The Blue Book is a “General Explanation” of tax law prepared by the Joint Committee on Taxation, and is commonly relied upon by both taxpayers and the Internal Revenue Service (IRS). In United States v. Woods, the U.S. Supreme Court broadly disapproved of judicial deference to the Blue Book when courts are faced with such reliance. Yet, the Court left no guidance on when the Blue Book should or should not prove persuasive. The Court’s decision to summarily undermine Blue Book deference—without further elaboration, sophistication, or nuance—will give taxpayers pause when considering whether to rely on the Blue Book. …

Fernandez V. California And The Expansion Of Third-Party Consent Searches, Anna P. Hayes

Florida Law Review

Imagine a day when the police come knocking at your door: you open the door, and the police ask you if they may conduct a warrantless search of your residence. As any good constitutional law student would, you explain to them that you are well aware of your rights under the Fourth Amendment, and that they should come back with a warrant. Because the dutiful officers believe that you have committed a crime, they arrest you on the spot, rather than obtaining a search warrant for the premises. After arresting you and removing you from the premises the officers then …

You Have The Right To Remain Silent, But Anything You Don’T Say May Be Used Against You: The Admissibility Of Silence As Evidence After Salinas V. Texas, Andrew M. Hapner

Florida Law Review

In Salinas v. Texas, the United States Supreme Court held that a suspect’s refusal to answer an officer’s questions during a noncustodial, pre-Miranda, criminal interrogation is admissible at trial as substantive evidence of guilt. In a plurality decision, Justice Samuel Alito emphasized that before a suspect can rely on the privilege against self-incrimination, the suspect must invoke the privilege. Consequently, because silence does not invoke the privilege, and because the petitioner failed to expressly invoke the privilege in words, the prosecutor’s use of his pre-Miranda silence during a noncustodial interrogation did not violate the Fifth Amendment. …

Misuse Of Information Under The Computer Fraud And Abuse Act: On What Side Of The Circuit Split Will The Second And Third Circuits Wind Up?, Robert D. Sowell

Florida Law Review

The Computer Fraud and Abuse Act (CFAA) has reached a breaking point. The much-discussed issue is whether the CFAA provides a cause of action against persons who use electronic information in a way that violates a relevant computer-use policy. Four circuit courts of appeals have held that the CFAA provides a cause of action for misuses of information, while two have disagreed. In two undecided circuits, the district courts have favored the latter interpretation. As the Supreme Court recently refused to address the issue, these two undecided circuits will play a pivotal role in determining the direction of the CFAA.

Aventura Management, Llc V. Spiaggia Ocean Condominium Association: Condominium Associations Beware, William C. Matthews

Florida Law Review

In late January 2013, the Third District Court of Appeal sent shockwaves throughout the real estate community with regards to condominium associations’ rights as unit owners. In AventuraManagement, LLC v. Spiaggia Ocean Condominium Association (Spiaggia), the appellate court interpreted Florida Statute § 718.1162 in an unprecedented way. The court held that if a condominium association takes title to a unit before the bank forecloses on a defaulting unit owner, the association is jointly and severally liable for all past due assessments with the previous owner that came due, up to the time of transfer of title.3 Condominium associations across …

Thirty-Two Years On The Federal Bench: Some Things I Have Learned, Judge Emmett Ripley Cox

Florida Law Review

In this Essay, prepared as the basis for the 2014 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, Judge Cox discusses a few things he learned from his experience as a trial judge and later as an appellate judge. Specifically, he addresses how the proliferation of federal law—both criminal and civil—imposes a real burden on the federal courts. This proliferation has negatively affected pleading and pretrial procedures in the federal court system. Additionally, he discusses what lawyers can do about these pleading and pretrial problems.

Over the course of his career Judge Cox have …

Guilt Without Mens Rea: How Florida’S Elimination Of Mens Rea For Drug Possession Is Constitutional, Marc B. Hernandez

Florida Law Review

The Florida Comprehensive Drug Abuse Prevention and Control Act is almost unique among criminal drug statutes in the United States. Like all states, Florida prohibits the possession, sale, and delivery of certain controlled substances. However, a recent revision of the Florida Comprehensive Drug Act removed Florida’s burden of proving one aspect of defendants’ mens rea in drug cases. Although several cases have challenged the Florida Comprehensive Drug Act for disregarding the traditional role of mens rea in criminal law and for subjecting innocent people to prosecution, the state of Florida continues to prosecute and obtain convictions under the statute.

This …

Expertise And Opinion Assignment On The Courts Of Appeals: A Preliminary Investigation, Jonathan Remy Nash

Florida Law Review

This Article examines the role of expertise in judicial opinion assignment and offers four contributions: First, this Article develops a general theory of opinion assignment on multimember courts. Second, this Article uses that theory to predict how expertise might influence opinion assignment. Third, because the theory advanced in this Article suggests that the courts of appeals are far more likely to witness experience-based opinion assignment than is the Supreme Court, this Article contributes to an understanding of opinion assignment practices in this understudied area. Fourth, this Article identifies two settings in which the theory this Article advances should have observable …

Mainstreaming Employment Contract Law: The Common Law Case For Reasonable Notice Of Termination, Rachel Arnow-Richman

Florida Law Review

This Article simultaneously exposes a fundamental error in employment termination doctrine and a paradox in contract law jurisprudence. Contemporary employment law has developed under the assumption that at-will parties may terminate their relationship both without reason and without notice. This Article argues that the second half of this formulation—the idea that parties reserve the procedural right to terminate without notice—is neither historically supported nor legally correct. Employment at will, as originally expressed, was a mere duration presumption reflecting America’s rejection of the predominant British rule favoring one-year employment terms. While subsequent case law expanded the presumption in various ways, a …

Democracy, The Constitution, And Legal Positivism In America: Lessons From A Winding And Troubled History, Edward A. Purcell Jr.

Florida Law Review

This Article explores the political and philosophical background of the current debate between positivist “originalism” and evolutionary “living constitutionalism” and, more generally, the significance of positivist ideas for both democratic and constitutional theory. Noting the tensions between positivist and nonpositivist ideas that existed in early American constitutionalism, it focuses on the impact of John Austin’s theory of legal positivism in the United States after the Civil War and the way successive generations of Americans interpreted positivist ideas to develop their theories of democracy and constitutionalism. It argues that Austin inspired rival jurisprudential approaches that quickly, but misleadingly, became entangled with …

The Debilitating Effect Of Exclusive Rights: Patents And Productive Inefficiency, William Hubbard

Florida Law Review

Are we underestimating the costs of patent protection? Scholars have long recognized that patent law is a double-edged sword. While patents promote innovation, they also limit the number of people who can benefit from new inventions. In the past, policy makers striving to balance the costs and benefits of patents have analyzed patent law through the lens of traditional, neoclassical economics. This Article argue that this approach is fundamentally flawed because traditional economics rely on an inaccurate oversimplification: that individuals and firms always maximize profits. In actuality, so-called "productive inefficiencies" often prevent profit maximization. For example, cognitive biases, bounded rationality, …

Unbundling Procedure: Carve-Outs From Arbitration Clauses, Christopher R. Drahozal, Erin O'Hara O'Connor

Florida Law Review

A rich literature analyzes how parties choose between courts and arbitration. Within this literature, scholars traditionally assume that sophisticated parties make a single choice between courts and arbitration based on the bundle of dispute resolution services that seems most appealing ex ante. As with the literature on bundling generally, however, legal scholars are increasingly focusing their attention on the unbundling of court and arbitral procedures—that is, the ability of parties to contract for à la carte or customized dispute resolution procedures in court and arbitration. While such unbundling is common ex post, i.e., after a dispute arises, most …

Disuniformity, Jason Rantanen, Lee Petherbridge Ph.D.

Florida Law Review

The United States Court of Appeals for the Federal Circuit is a response to a failure in judicial administration that produced a fractured, unworkable patent law—one that Congress concluded ill-served entrepreneurship and innovation. The purpose of the response—vesting exclusive jurisdiction for patent appeals in the Federal Circuit—was to permit that court to develop patent law in the direction of greater clarity and uniformity. Both at the time of the Federal Circuit's creation and again more recently scholars, judges, and practitioners have waged great debates over whether patent law uniformity furthers the ultimate goals of entrepreneurship and innovation. These debates have …

Lost In Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Florida Law Review

No abstract provided.

"Sophisticated Robots": Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard

Florida Law Review

Our lives are being transformed by large, mobile, "sophisticated robots" with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements on the field to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the …

Illusory Protection: The Fifth Circuit’S Misguided Interpretation Of Title Vii’S Anti-Retaliation Provision In Hernandez V. Yellow Transportation, Inc., William C. Matthews

Florida Law Review

After Burlington Northern & Santa Fe Railway Co. v. White resolved the issue of what constitutes an “adverse action” under the Title VII anti-retaliation statute, the scope of employer liability was substantially broadened. The Supreme Court’s decision reinforced the broad intent behind the anti-retaliation statute and acknowledged the statute’s remedial purpose. The Fifth Circuit, however, has been reluctant to expand employer liability as evidenced through its interpretation of the “adverse action” prong relating to coworker harassment. More specifically, the Fifth Circuit’s “In Furtherance” standard, which is used to judge whether an employer is liable for coworker harassment in retaliation for …

Freedom Of Information Act And Federal Licensing Procedures: Invoking Exemption 7(F) To Protect Examination Materials, Karl Gruss

Florida Law Review

The United States Supreme Court’s 2011 decision in Milner v. Department of the Navy shut the door on an expansive interpretation of one of the nine enumerated exemptions to the public disclosure requirements mandated under the Freedom of Information Act. No longer can federal agencies seek cover behind the judicially crafted interpretation of Exemption 2 known as the “High 2” that permitted agencies to withhold documents from the public eye solely because disclosure of the information contained therein could risk circumvention of an individual agency’s regulations or statutes. However, Justice Alito’s concurring opinion in Milner hinted at the Court’s possible …

Fact Sheet #71: Shortchanging The Unpaid Academic Intern, Patricia L. Reid

Florida Law Review

On the eve of the Fair Labor Standards Act’s seventy-fifth anniversary, unpaid academic internships threaten to outpace government regulation and undermine opportunities for gainful employment. Although coveted by students eager to fill a line on their résumé, unpaid academic internships are a subspecies of unpaid internships that might soon face extinction. While the advent of unpaid internship litigation decreases the likelihood that employers will plead ignorance of the law when they defend against disgruntled unpaid interns, recent litigation does little to clear up a half-century of contradictory case law. The only certainty that surrounds the legal status of unpaid academic …

Who’S Afraid Of Good Governance? State Fiscal Crises, Public Pension Underfunding, And The Resistance To Governance Reform, Thomas J. Fitzpatrick, Amy B. Monahan

Florida Law Review

Much attention has been paid to the significant underfunding of many state and local employee pension plans, as well as to efforts by states and cities to alleviate that underfunding by modifying the benefits provided to workers. Yet relatively little attention has been paid to the systemic causes of such financial distress—such as chronic underfunding that shifts financial burdens to future taxpayers, and governance rules that may reduce the likelihood that a plan’s trustees will make optimal investment decisions. This Article presents the results of a qualitative study of the funding and governance provisions of twelve public pension plans that …

Incentivizing The Ordinary User, Gaia Bernstein

Florida Law Review

Disputes regarding the effectiveness of the patent system focus on the appropriate scope of patent rights. This Article departs from the traditional debate and looks instead at the players regulated by the patent system. This Article shows that the patent system fails to effectively encourage technological dissemination because it focuses on the patent owner and his competitors but largely ignores a crucial player: the ordinary user.

The user, in his everyday decisions of whether to adopt a technology, plays a critical role in determining whether a new technology will be disseminated. Yet patent law contains an overly simplistic view of …

The Unwritten Administrative Constitution, Emily S. Bremer

Florida Law Review

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal Era, administrative law—the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, and executive directives—has accommodated the emergence of this fourth branch of government not contemplated by the Framers. Familiar principles, including the separation of powers, the rule of law, and individual liberties, permeate administrative law. But these principles cannot be expressly located in the U.S. Constitution. …

Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash

Florida Law Review

A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …

Mutual Marginalization: Individuals With Disabilities And Workers With Caregiving Responsibilities, Nicole Buonocore Porter

Florida Law Review

This Article explores the marginalization of two groups of employees—individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. However, while these groups are not perfectly aligned, they do have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal-worker norm. The need for accommodation causes both groups of employees to suffer from “special-treatment stigma,” which manifests itself in …

The Tort Label, Sandra F. Sperino

Florida Law Review

Courts and commentators often label federal discrimination statutes as torts. The tort label leads to reasoning that is superficial and not transparent about its motivations and goals. Courts do not engage in nuanced discussions about the kind of reasoning they are using or the values they are prioritizing in reaching the result. Importantly, the tort label gives the appearance that the courts are engaging in a form of traditional analysis that is noncontroversial. This Article argues that multiple claims courts make about the employment discrimination statutes related to the tort label are so baseless that they do not even reach …

Law’S Algorithm, John O. Mcginnis, Steven Wasick

Florida Law Review

This Article offers a historical, theoretical, and practical perspective on law as an information technology. Law fundamentally concerns information—providing information to the community about the content of legal norms and, at least in its common law form, eliciting information about the world from the disputes before a court. This Article first surveys law’s history as an information technology and shows how law is changed by the information technology of its day. It then applies information theory to understand how the computer—the key technology of our day— is changing how practitioners conduct legal search and thereby which forms of law are …

Regulating The Speech Of Judges And Lawyers: The First Amendment And The Soul Of The Profession, Rodney A. Smolla

Florida Law Review

The legal profession has historically asserted moral and legal authority to substantially control the speech of judges and lawyers. This impulse to control the speech of judges and lawyers is driven by many of the profession’s most strongly held interests and values. These include such interests as ensuring the fair administration of justice, the promotion of respect for the rule of law, the preservation of public confidence in the legal system, the preservation of the appearance of judicial impartiality, the maintenance of professionalism, and the safeguarding of the dignity of the profession. Some of these interests are palpable and may …

Rule 60(B)(4): When The Courts Of Limited Jurisdiction Yield To Finality, Stephen E. Ludovici

Florida Law Review

It is basic hornbook law—affirmed by courts across time and space repeatedly and unequivocally—that subject-matter jurisdiction cannot be waived. However, in the context of a Rule 60(b)(4) motion seeking relief from a void final judgment after the time for appeal has expired, the onerous standard of review used by courts causes subject-matter jurisdiction to be practically—and frequently—waived in favor of the finality of the judgment. While an onerous standard is tolerable where the court issuing the judgment explicitly found subject-matter jurisdiction, an onerous standard is unacceptable where the court did not do so in light of the federal courts’ limited …

Extortion Through The Public Record: Has The Internet Made Florida’S Sunshine Law Too Bright?, Michael Polatsek

Florida Law Review

In recent years, privately owned websites around the country have begun to gather arrest records directly from law enforcement websites and republish them on their own sites. Often, the images are displayed without regard to the ultimate disposition of the arrestee’s case. Images and arrest records of individuals who were eventually convicted or acquitted are stored on these websites indefinitely, and specifically designed search algorithms ensure that potentially damaging information is just a click away on commonly used search engines such as Google. Some websites categorize images under derogatory headings based solely on the individual’s appearance and allow users to …

Using Outcomes To Reframe Guilty Plea Adjudication, Anne R. Traum

Florida Law Review

The Supreme Court’s 2012 decisions in Lafler v. Cooper and Missouri v. Frye lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to the effective assistance of counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea-bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court-level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas. …

The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch

Florida Law Review

One important bias economists and psychologists have identified is the lock-in effect. The lock-in effect causes a decision maker who must revisit an earlier decision to be locked in to that earlier decision. The effect is particularly pronounced where the earlier decision led to the investment of resources that cannot be recovered. Although lock-in does not prevent the decision maker from altering course, it does introduce a systemic bias that should be taken into account.

Preliminary injunctions require judges to assess the merits of a case at an early stage and then revisit the merits later. In the early stages …