Law Commons^™

Renegotiating The Copyright Deal In The Shadow Of The "Inalienable" Right To Terminate, Lydia Pallas Loren

Florida Law Review

Few people realize that many contracts that purport to transfer “all right, title and interest” in a copyright can be terminated by the author of the copyrighted work after thirty-five years (in some cases), after fifty-six years (in other cases), and sometimes even after seventy-five years. Even if the agreement states that the rights granted are “in perpetuity” or “for the duration of the copyright and any renewals,” that agreement remains subject to the author’s right to terminate the agreement and take back the copyright. Agreements transferring or licensing copyright are even subject to a set of contingent termination rights …

The Graduated Response, Peter K. Yu

Florida Law Review

No abstract provided.

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

Florida Law Review

No abstract provided.

The Kids Are Alright: Applying A Fault Liability Standard To Amateur Digital Remix, Steven Hetcher

Florida Law Review

No abstract provided.

The Wisdom Of Crowds? Groupthink And Nonprofit Governance, Melanie B. Leslie

Florida Law Review

Scandals involving nonprofit boards and conflicts of interest continue to receive considerable public attention. Earlier this year, for example, musician Wyclef Jean’s Yele Haiti charity became the target of intense criticism after the charity disclosed that it had regularly transacted business with Jean and entities controlled by Jean and other directors. Although scandals caused by self-dealing undermine public confidence in the charitable sector, they continue to erupt. Why do charitable boards sanction transactions with insiders?

This Article argues that much of the blame lies with the law itself. Because fiduciary duty law is currently structured as a set of fuzzy …

Unreasonable Accommodation And Due Hardship, Mark C. Weber

Florida Law Review

This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes:

(1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.”

(2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefit balance but rather a cost-resource balance; …

The Constitutionality And Economic Impacts Of Federal Jurisdiction Of Wetlands: The Clean Water Restoration Act Of 2009, R. Benjamin Lingle

Florida Law Review

No abstract provided.

A Real-World Analysis Of Pharmaceutical Settlements: The Missing Dimension Of Product Hopping, Michael A. Carrier

Florida Law Review

The pharmaceutical industry plays an important role in improving human health. But it also provides the setting for some of the most concerning issues in the patent-antitrust intersection today. Two activities are particularly worrisome.

First, brand-name pharmaceutical firms and generic companies have settled patent litigation. As part of these agreements, brand firms have paid generic firms to drop their patent challenges and delay entering the market.

Second, brand firms, frequently at the end of a patent term, have engaged in “product hopping,” often switching from one means of administering a drug (e.g., tablet) to another (e.g., capsule).

In the past …

Legislatures, Judges, And Parole Boards: The Allocations Of Discretion Under Determinate Sentencing, Dhammika Dharmapala, Nuno Garoupa, Joanna M. Shepherd

Florida Law Review

The most significant development in criminal sentencing in recent decades has been the shift from indeterminate to determinate sentencing. Yet no study has systematically explored the factors leading to this shift. In this Article, we provide the first analysis to explain why state legislatures enact reforms that significantly reduce both judges’ and parole boards’ discretion over criminal sentencing. First, we develop a political economy model that explains why legislatures acting in their own self-interest may be motivated to enact these laws. Our model predicts that legislatures are more likely to enact determinate sentencing reforms when there is tension among the …

A Sense Of Disentitlement: Frame-Shifting And Metaphor In Ashcroft V. Iqbal, Lisa Eichhorn

Florida Law Review

No abstract provided.

Renters Evicted En Masse: Collateral Damage Arising From The Subprime Foreclosure Crisis, Creola Johnson

Florida Law Review

No abstract provided.

The Federal Trade Commission And The Sherman Act, Herbert Hovenkamp

Florida Law Review

No abstract provided.

Civil Rights Violations = Broken Windows: De Minimis Curet Lex, Anita Bernstein

Florida Law Review

Civil rights violations that appear relatively slight may warrant judicial redress despite their small size; some of them point up important principles. Leaving these violations unremedied may contribute to an ambient lawlessness that can foster bigger harms. A small infringement in this respect resembles the criminological construct of “broken windows,” which in its prescriptive form urges governments to view de minimis violations as harbingers of more disorder to come.

Using broken windows to understand privately initiated civil rights claims honors a statutory mandate and helps to achieve progressive ends. This application is potentially better than the one that police impose …

What's Wrong With Qualified Immunity?, John C. Jeffries Jr.

Florida Law Review

No abstract provided.

The Graves Amendment: Putting To Death Florida's Strict Vicarious Liability Law, Brent Steinberg

Florida Law Review

No abstract provided.

Florida Premises Liability On Easements Of Way: Liability For Injuries To Third Parties, William Smith

Florida Law Review

No abstract provided.

Don’T Tase Me Bro!: A Comprehensive Analysis Of The Laws Governing Taser Use By Law Enforcement, Jeff Fabian

Florida Law Review

No abstract provided.

Silent At Sentencing: Waiver Doctrine And A Capital Defendant's Right To Present Mitigating Evidence After Schriro V. Landrigan, Dale E. Ho

Florida Law Review

The consideration of mitigating evidence—evidence that weighs against the imposition of the death penalty in a capital defendant’s individual case—has been deemed a “constitutionally indispensable” feature of a valid capital sentencing scheme. And yet, Jeffrey Landrigan, like many capital defendants, was sentenced to death without the consideration of any mitigating evidence whatsoever. Landrigan’s trial counsel failed to uncover substantial evidence of Landrigan’s history of severe physical and sexual abuse as a child, and of the possible biological effects of his mother’s alcohol and drug abuse. Every member of the Ninth Circuit en banc panel considering his case deemed his counsel’s …

Cy Pres Relief And The Pathologies Of Modern Class Action: A Normative And Empirical Analysis, Martin H. Redish, Peter Julian, Samantha Zyontz

Florida Law Review

No abstract provided.

Traditional Versus Economic Analysis: Evidence From Cardozo And Posner Torts Opinions, Lawrence A. Cunningham

Florida Law Review

No abstract provided.

Bending Nature, Bending Law, David G. Owen

Florida Law Review

No abstract provided.

Adjudicators, Not Legislators: Eleventh Circuit Declines Opportunity To “Breathe Further Life” Into § 212(C) Deportation Relief, Andres Healy

Florida Law Review

No abstract provided.

The Consent-Once-Removed Doctrine: The Constitutionality Of Passing Consent From And Informant To Law Enforcement, Tim Sobczak

Florida Law Review

No abstract provided.

The Constitutionality Of Amended 10 U.S.C. Sec. 802(A)(10): Does The Military Need A Formal Invitation To Reign In "Cowboy" Civilian Contractors?, Andres Healy

Florida Law Review

No abstract provided.

The New Federal Pleading Standard, Allison Sirica

Florida Law Review

No abstract provided.

Disability Stigma And Intraclass Discrimination, Jeannette Cox

Florida Law Review

By dramatically enlarging the Americans with Disabilities Act’s (ADA) protected class, the recent amendments to the ADA increase the opportunities for employers to replace one member of the ADA’s protected class with another. Although disparities in the social stigma associated with different disabilities suggests that such employment decisions are not automatically free from disability-based animus, many courts historically regarded such decisions as immune from ADA scrutiny. They held that the ADA only prohibited discrimination between persons inside and outside the ADA’s protected class. Today, this “no intraclass claims” approach persists in a modified form: Some courts limit intraclass claims to …

Lifting The Blindfold From Lady Justice: Allowing Judges To See The Structure In The Judicial Code, Gregory C. Sisk

Florida Law Review

No abstract provided.

Following Industry's Leed®: Municipal Adoption Of Private Green Building Standards, Sarah B. Schindler

Florida Law Review

Local governments are beginning to require new, privately constructed and funded buildings to be “green” buildings. Instead of creating their own, locally-derived definitions of green buildings, many municipalities are adopting an existing private standard created by members of the building industry: LEED (Leadership in Energy and Environmental Design). This Article explains and assesses the privately promulgated LEED standards. It argues that the translation of LEED standards, which were intended to be voluntary, into law raises several theoretical and practical problems. Specifically, private green building ordinances that rely on LEED do not ensure a reduction in the negative local environmental impacts …

Unwitting Sanctions: Understanding Anti-Bribery Legislation As Economic Sanctions Against Emerging Markets, Andrew Brady Spalding

Florida Law Review

Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA), is to deter bribery, empirical evidence demonstrates a problematic collateral effect. In countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond the deterrence of bribery, and ultimately deters investment. Drawing on literature from political science and economics, this Article argues that anti-bribery legislation, as presently enforced, functions as de facto economic sanctions. A detailed analysis of the history of FCPA enforcement shows that these sanctions most often occur in emerging markets, where historic opportunities for economic and social development …

Defamation In The Internet Age: Why Roommates.Com Isn't Enough To Change The Rules For Anonymous Gossip Websites, Skyler Mcdonald

Florida Law Review

No abstract provided.