Law Commons^™

Separation Of Powers, Executive Authority, And Suspension Of Disbelief, Nat Stern

Scholarly Publications

The growth of federal executive power to a magnitude not foreseen at the Constitution's adoption has been largely enabled by favorable rulings by the Supreme Court. Though not invariably sustaining executive prerogative, the Court has rejected challenges to executive power on a scale sufficient to afford the Executive enormous latitude to carry out and shape federal policy. In assessing whether the Executive has overstepped its bounds in particular cases, scholars and Justices alike frequently debate whether a formalist or functional approach more faithfully implements the Constitution's system of separation of powers. Transcending these two schools of interpretation, however, is a …

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 …

Experiencing Experiential Education: A Faculty-Student Perspective On The University Of Tennessee College Of Law's Adventure In Access To Justice Author, Robert C. Blitt

Scholarly Works

This article functions both as a brief history lesson in experiential education and as a case study of an experiential course entitled “Human Rights Practicum” offered at the University of Tennessee College of Law in 2015. After briefly discussing historical and current trends in law school reform, including the rise of experiential education within the law school curriculum and the role played by technology in this context, the article turns to explore the impetus for the Human Rights Practicum, its development and implementation, as well as the software technology used to develop its final work product, a web-based “guided interview” …

Honoring Dan Meltzer, Bradford R. Clark

Notre Dame Law Review

Dan Meltzer was a giant in the field of Federal Courts, and it is hard to overstate his influence on its development. He taught Federal Courts at Harvard Law School and was a long-time co-author of Hart & Wechsler’s The Federal Courts and the Federal System (“Hart & Wechsler ”), the casebook that created the field and shaped how generations of judges, lawyers, and scholars think about complex questions of federal jurisdiction. In addition, Dan enriched the field immeasurably by writing seminal articles on a wide range of Federal Courts topics. His work was characterized by deep knowledge of the …

Vol. 33, No. 4, Thomas M. Melody

The Illinois Public Employee Relations Report

Labor-Management Cooperation In A Fire Department Closure: The Highwood Story, by Thomas M. Melody

Recent Developents

Getches-Wilkinson Center Newsletter, Fall 2016, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

Getches-Wilkinson Center for Natural Resources, Energy, and the Environment Newsletter (2013-)

No abstract provided.

The Coupon Quandry: Restructuring Incentives In Cafa Coupon Settlements, Michael Gallagher Ii

Notre Dame Law Review

This Note proceeds in five parts. Part I provides a background of coupon settlements with special attention paid to the incentives of class counsel. Part II outlines CAFA’s relevant statutory provisions and examines them in light of the “Purposes” section in the statute and the Senate report accompanying the legislation—the most illuminating indicia of legislative intent. Part III examines the rationale supporting both cases in the circuit split and the implications behind both interpretive regimes. Part IV argues that the Seventh Circuit has the better legal argument for two reasons: (1) its strong textual argument; and (2) its support found …

Patent Law, Copyright Law, And The Girl Germs Effect, Ann Bartow

Law Faculty Scholarship

[Excerpt] "Inventors pursue patents and authors receive copyrights.

No special education is required for either endeavor, and nothing

precludes a person from being both an author and an inventor.

Inventors working on patentable industrial projects geared

toward commercial exploitation tend to be scientists or engineers.

Authors, with the exception of those writing computer code, tend

to be educated or trained in the creative arts, such as visual art,

performance art, music, dance, acting, creative writing, film

making, and architectural drawing. There is a well-warranted

societal supposition that most of the inventors of patentable

inventions are male. Assumptions about the genders …

Riding Circuit: Bringing The Law To Those Who Need It, Susan Zago

Law Faculty Scholarship

This article surveys the Access to Justice movement in the United States and proposes including more types of professionals to develop longer term solutions that will alleviate barriers to the court system. This article discusses the need to expand the access to justice concept to reach beyond the courthouse to address civil legal issues before they blossom into litigation. Mobile outreach providing preventive lawyering and early treatment of societal problems can prevent delays and the bottleneck that many courts are seeing with the vast numbers of Self-Represented Litigants. A team of professionals including lawyers, social workers, nurses, counselors, translators and …

A “Second Magna Carta”: The English Habeas Corpus Act And The Statutory Origins Of The Habeas Privilege, Amanda L. Tyler

Notre Dame Law Review

In my own scholarship, Fallon and Meltzer’s work on habeas models prompted me to dig deeper into the historical backdrop that informed ratification of the Suspension Clause and think harder about the relevance of that history for questions of constitutional interpretation. This, in turn, has spurred work that has occupied me for many years since. In the spirit of engaging with my federal courts professor one more time, this Article tells the story of the statutory origins of the habeas privilege—what Blackstone called a “second magna carta”—and argues that any explication of the constitutional privilege and discussion of how …

The Risks Of Revolution: Ethical Dilemmas In 3d Printing From A Us Perspective, Erica L. Neely

Philosophy and Religion Faculty Scholarship

Additive manufacturing has spread widely over the past decade, especially with the availability of home 3D printers. In the future, many items may be manufactured at home, which raises two ethical issues. First, there are questions of safety. Our current safety regulations depend on centralized manufacturing assumptions they will be difficult to enforce on this new model of manufacturing. Using current US law as an example, I argue that consumers are not capable of fully assessing all relevant risks and thus continue to require protection any regulation will likely apply to plans, however, not physical objects. Second, there are intellectual …

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. …

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.

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 …

Trans-Pacific Partnership: Continuity And Breakthroughs In U.S. Investment Treaty Practice, Charles Hendrickson Brower Ii

Law Faculty Research Publications

In October 2015, the United States completed negotiations for the Trans- Pacific Partnership (“TPP”), a free trade agreement among twelve Pacific Rim states.1 According to the White House, TPP will “rewrite the rules of trade,” will include “high standards . . . that . . . upgrade our existing agreements,” and will “have a profound impact on . . . how we invest in the developing world.”2 By contrast, the leading presidential candidates from both parties offer distinctly negative assessments of TPP. Hillary Clinton has opined that TPP does not meet the “very high” bar she would set for producing …

Compensation's Role In Deterrence, Russell M. Gold

Notre Dame Law Review

There are plenty of noneconomic reasons to care whether victims are compensated in class actions. The traditional law-and-economics view, however, is that when individual claim values are small, there is no reason to care whether victims are compensated. Rather than compensation deterring wrongdoing is tort law’s primary economic objective. And on this score, law-and-economics scholars contend that only the aggregate amount of money that a defendant expects to pay affects deterrence. They say that it does not matter for deterrence purposes how that money is split between victims, lawyers, and charities. This Article challenges that claim about achieving tort law’s …

Oral Advocacy And Vocal Fry: The Unseemly, Sexist Side Of Nonverbal Persuasion, Michael J. Higdon

Scholarly Works

In 2015, Naomi Wolf warned that "the most empowered generation of women ever — today’s twentysomethings in North America and Britain — is being hobbled in some important ways by something as basic as a new fashion in how they use their voices." She was referring to the phenomenon referred to as "vocal fry" — a speech quality in which the speaker lowers her natural pitch and produces a "creaking" sound as she talks. Naomi Wolf is not alone in her warnings; vocal fry has received quite a bit of negative attention recently. Specifically, these critics warn that those who …

Furthering The Fiduciary Metaphor: The Duty Of Providers To The Payers Of Medicare, Isaac ("Zack") D. Buck

Scholarly Works

Five years and two near-death experiences later, the Patient Protection and Affordable Care Act of 2010 (ACA) has restructured the delivery of American health care. It has provided coverage to millions of Americans who previously did not have it, outlawed discrimination in the insurance marketplace, and armed the patient with consumer-based tools to streamline their care. Its positive impact is being seen throughout the country. But it can only go so far. Separate from the goal of providing access, the most daunting challenge facing American health care, and particularly, Medicare, is controlling expenditures and utilization in an era of unprecedented …

Good Ole Rocky Top: Rocky Top Tennessee, Brian Krumm

Scholarly Works

No abstract provided.

Admissible Evidence: Vol. 1, Issue 5, Ndls Social Committee

Admissible Evidence

On the Scene

Ali Wruble will be singing the national anthem at the women's basketball home opener on November 3. If you are looking for an excuse to support WBB (as if you need one), come see Ali! Be sure to get there by about 6:50 to hear the anthem, or... if you prefer hockey, Ali will be singing the national anthem at this Sunday's exhibition game at 5:00 p.m. GO IRISH!

October Birthdays & Anniversaries

• 2 - Sharon Loftus
• 8 - Jaimi Lentine-Wood
• 10 - Janet Rose
• 17 - Vincent Versagli
• 24 - Amy Shirk
• 29 - Richard Herbst …

Uncertainty And Reverse Payments, Ramsi Woodcock

Law Faculty Scholarly Articles

The current approach to “reverse payment” settlements of drug patent litigation seeks to preclude only those settlements guaranteed to harm consumers, rather than all that could harm them. Antitrust tolerates the possibility of harm in order to give firms the freedom to make settlements that might benefit consumers, relative to what courts would achieve under patent law. Antitrust’s mission is not, however, to improve upon outcomes under patent law, but rather to prevent harm to consumers. Accordingly, antitrust must minimize the possibility of harm, even if that precludes the chance of gain. I show that a ban on all settlements …

The Professional, Fall 2016, Henry Latimer Center For Professionalism

The Professional Newsletter

The Professional is a publication of The Florida Bar Henry Latimer Center for Professionalism. It is published triannually and provides practical information regarding professionalism relevant to the practice of law in Florida.

Everyday Legal Problems And The Cost Of Justice In Canada: Infographic, Canadian Forum On Civil Justice

Canadian Forum on Civil Justice

N/A

Swept Away: Should Courts Retain A Recklessness Standard In Assessing Rescuer Injury Claims Under The Maritime Rescue Doctrine?, Anthony Acciaioli

Notre Dame Law Review

This Note asserts that courts should continue to apply the traditional maritime rescue doctrine along with its “wanton or reckless” standard when assessing whether a rescuer injured during a maritime rescue attempt stemming from a negligent tortfeasor’s conduct may recover for his or her injuries. Part I will analyze the arc of rescue doctrine–related case law surrounding the aforementioned circuit split, scrutinizing how the rescue doctrine has been impacted by the larger-scale paradigm shift in apportioning liability from contributory negligence to comparative negligence. Part II will discuss the circuit split directly and argue that in light of admiralty law’s historical …

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.

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.

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 …

Digital Self-Ownership: A Publicity-Rights Framework For Determining Employee Social Media Rights, Susan Park, Patricia Sánchez Abril

Management Faculty Publications and Presentations

Imagine an upandcoming company hires you as one of its first employees. Passionate about your employer, you put in long hours doing everything from marketing to accounting to event planning. You are also proud of your employer's product, so you begin to publicize it to your friends through your social network accounts. (In fact, the company's founder is also one of your Facebook friends.) You tell your friends about the product launch, invite them to marketing events, and eventually blog about your industry, amassing a significant social media following while creating buzz about your employer. But one day, during layoffs …

Authorized Personnel Only: The Patent Exhaustion Doctrine After Helferich, Jeffrey W. Schmidt

Notre Dame Law Review

This Note will analyze the framework utilized by the Federal Circuit in Helferich to assess whether or not it follows Supreme Court precedent along with the public policies that govern American patent law. Part I provides a brief introduction to the patent exhaustion doctrine and the public policies surrounding the doctrine and patent law in general and discusses important Supreme Court cases that defined the doctrine. Part II discusses Helferich in detail and lays out some of the major differences between the approaches taken by the Federal Circuit and the one taken by the district court. Part III analyzes the …