Florida Law Review
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Open Access journal
ISSN (Print) 1045-4241
Published by U of Florida [1 journal]
- Surpassing Sentencing: The Controversial Next Step in Confrontation Clause
Authors: Amanda Harris
Abstract: After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing. This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this Note addresses both the text of the Sixth Amendment and the history surrounding the Confrontation Clause to conclude that the right of confrontation should apply during sentencing, or at least during capital sentencing. Second, this Note rejects the rationale that Williams v. New York is the controlling precedent in the confrontation at sentencing debate. Under this approach, applying the Confrontation Clause at sentencing may be the next logical step in Confrontation Clause jurisprudence.
PubDate: Wed, 17 Oct 2012 16:10:42 PDT
- The New Crowdfunding Registration Exemption: Good Idea, Bad Execution
Authors: Stuart R. Cohn
Abstract: Title III of the JOBS Act, signed by President Obama on April 5, 2012, sets forth a new exemption from federal and state securities registration for so-called “crowdfunding” promotions. Crowdfunding is an increasingly popular form of raising capital through broad-based internet solicitation of donors. Many promotions simply seek charitable or other donations. But the lure of raising funds through the internet has also led to promotions for potentially profitable ventures that offer an economic return to donors. These efforts invoke the federal and state securities laws, as there are no de minimis standards protecting even the smallest of offerings. Registration exemptions under the 1933 Securities Act and those created by the Securities & Exchange Commission have not been useful for such small offerings and certainly cannot be used for internet-based offerings. In the face of SEC inaction with regard to such small-scale promotions, Congress took it upon itself to create a new exemption. Unfortunately, as described in this Essay, despite good intentions, the newly-created exemption is fraught with regulatory requirements that go beyond even existing exemptions and raise transaction costs and liability concerns that may substantially reduce the exemption’s utility for small capital-raising efforts.
PubDate: Wed, 17 Oct 2012 16:10:41 PDT
- Perspective on Judicial Merit Retention in Florida
Authors: Scott G. Hawkins
Abstract: This November, voters will decide whether to retain in office three justices of the Florida Supreme Court and fifteen judges of the district courts of appeal. This Essay explains the merit retention process and puts that process in historical context. It analyzes the challenges voters face in making decisions about whether to retain appellate court judges and highlights The Florida Bar’s role in educating voters about merit retention. The Florida constitution entrusts the important decision whether to retain appellate court judges, including supreme court justices, to the voters, and in order to make that decision, voters must be informed about the judicial role in American democracy.
PubDate: Wed, 17 Oct 2012 16:10:40 PDT
- The Invisibility of Jurisdictional Procedure and Its Consequences
Authors: Justin R. Pidot
Abstract: Modern standing doctrine has been the subject of substantial scholarly inquiry. Critics charge that it allows judges to resolve cases based on their own ideologies, favoring corporations over individuals and those who harm over those harmed. The doctrine likewise disserves social justice, preventing adjudication of indisputably meritorious claims. Yet the focus on the substance of standing doctrine has obscured an equally significant impediment to justice created by the procedures that judges use to adjudicate questions of standing and subject matter jurisdiction generally. The unusual dimensions of jurisdictional procedure have largely escaped notice. This Essay interrogates the history and context of jurisdictional procedure, offers an explanation for its invisibility, and identifies the consequences of that neglect.
PubDate: Wed, 17 Oct 2012 16:10:40 PDT
- Law of the Intermediated Information Exchange
Authors: Jacqueline D. Lipton
Abstract: When Wikipedia, Google, and other online service providers staged a ―blackout protest‖ against the Stop Online Piracy Act (SOPA) in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could—and should—be reconceptualized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries—the service providers who facilitate all digital commerce and communication by providing the hardware and software through which all interactions take place. This Article advocates a fundamental shift in the nature of cyberspace scholarship towards a law of the ―intermediated information exchange,‖ and explains the benefits of such an approach in developing a more predictable and cohesive body of legal principles to govern cyberspace interactions.
PubDate: Wed, 17 Oct 2012 16:10:39 PDT
- Election Law Behind a Veil of Ignorance
Authors: Chad Flanders
Abstract: Election law struggles with the question of neutrality, not only with its possibility—can election rules truly be neutral between parties'—but also with its definition. What does it mean for election laws to be ―neutral‖' This Article examines one form of election law neutrality, found in what it terms ―veil of ignorance rules.‖ Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections. This Article considers the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly (in the Lisa Murkowski Senate race in Alaska), and the rule that a candidate must be a ―resident‖ of the city in which he plans to run for mayor (Rahm Emanuel‘s candidacy for Mayor of Chicago). Both rules can plausibly lay claim to being formed in conditions where neither party could know, ex ante, which rule would benefit its own candidates. Veil of ignorance rules are interesting in their own right, but they also suggest a possible modification in what Professor Rick Hasen has recently dubbed ―the democracy canon.‖ The canon suggests that ambiguous election law rules should be read in a way that maximizes voter enfranchisement and voter choice. But if there are some rules that are neutral, because formed behind a veil of ignorance, they may deserve a type of deference not due to rules that were formed with an eye toward partisan advantage—even if those rules serve to limit voter participation. Moreover, to the extent that the rules in the Murkowski and Emmanuel cases were neutral, upsetting them means upsetting a prior, legitimate, democratic decision. Voter participation and voter choice (that is, popular democracy) are not the only hallmarks of democratic legitimacy. Legislative decisions can also be democratic. The democracy canon only upholds one conception of democratic legitimacy. It is not, I conclude, the only one that can or should guide us in deciding close election law cases.
PubDate: Wed, 17 Oct 2012 16:10:39 PDT
- America’s First Patents
Authors: Michael Risch
Abstract: Courts and commentators vigorously debate early American patent history because of a spotty documentary record. To fill these gaps, scholars have examined the adoption of the Intellectual Property Clause of the Constitution, correspondence, dictionaries, and British and colonial case law. But there is one largely ignored body of information—the content of early patents themselves. While many debate what the founders thought, no one asks what early inventors thought—and those thoughts are telling. This Article is the first comprehensive examination of how early inventors and their patents should inform our current thoughts about the patent system. To better understand our early patent history, we read every available patent issued prior to the institution of the ―modern‖ examination system in 1836, totaling nearly 2,500 handwritten patents. For good measure, we also read the first 1,200 patents issued after 1836, the last of which issued in the middle of 1839.
PubDate: Wed, 17 Oct 2012 16:10:38 PDT
- The Gold Clause Cases and Constitutional Necessity
Authors: Gerard N. Magliocca
Abstract: This Article presents a case study of how constitutional actors respond when the rule of law and necessity are sharply at odds and provides some background on Section Four of the Fourteenth Amendment. In 1935, the Supreme Court heard constitutional challenges to the abrogation of “gold clauses” in contracts and Treasury bonds. Gold clauses guaranteed that creditors would receive payment in gold dollars as valued at the time a contract was made. Due to the deflation that followed the Great Depression, this meant that debtors were being forced to pay back much more than they owed originally. To stop a looming wave of bankruptcies, Congress passed a Joint Resolution declaring all gold clauses null and void. Following oral argument, President Franklin D. Roosevelt was concerned that the Court would invalidate the Joint Resolution. He concluded that he could not accept this result, and thus drafted a Fireside Chat announcing that he would not comply with such a decision. This unprecedented statement, which invoked the New Testament and necessity as the grounds for rejecting the Court‘s decision, has never been closely analyzed until now. In the end, the Court did not hold that the gold clauses must be enforced. With respect to Treasury Bonds, however, a plurality of the Justices concluded that the Joint Resolution was unconstitutional but that the bondholders were not entitled to relief. This slippery reasoning (in Perry v. United States) harkened back to Chief Justice Marshall‘s approach in Marbury v. Madison—another case in which the Court was confronted with presidential defiance. By recounting how President Roosevelt and Chief Justice Hughes—the author of Perry—sought to defuse (or, in some cases, exacerbate) the gold crisis, the dark arts of constitutional interpretation are exposed.
PubDate: Wed, 17 Oct 2012 16:10:37 PDT
- Triangulating Judicial Responsiveness: Automated Content Analysis,
Judicial Opinions, and the Methodology of Legal Scholarship
Authors: Chad M. Oldfather et al.
Abstract: The increasing availability of digital versions of court documents, coupled with increases in the power and sophistication of computational methods of textual analysis, promises to enable both the creation of new avenues of scholarly inquiry and the refinement of old ones. This Article advances that project in three respects. First, it examines the potential for automated content analysis to mitigate one of the methodological problems that afflicts both content analysis and traditional legal scholarship—their acceptance on faith of the proposition that judicial opinions accurately report information about the cases they resolve and courts‘ decisional processes. Because automated methods can quickly process large amounts of text, they allow for assessment of the correspondence between opinions and other documents in the case, thereby providing a window into how closely opinions track the information provided by the litigants. Second, it explores one such novel measure—the ―responsiveness‖ of opinions to briefs—in terms of its connection to both adjudicative theory and existing scholarship on the behavior of courts and judges. Finally, it reports our efforts to test the viability of automated methods for assessing responsiveness on a sample of briefs and opinions from the United States Court of Appeals for the First Circuit. Though we are focused primarily on validating our methodology, rather than on the results it generates, our initial investigation confirms that even basic approaches to automated content analysis provide useful information about responsiveness, and generates intriguing results that suggest avenues for further study.
PubDate: Wed, 17 Oct 2012 16:10:37 PDT
- Just What the Doctor Ordered' How the Patient Safety and Quality
Improvement Act May Cure Florida’s Patients’ Right to Know About
Adverse Medical Incidents (Amendment 7)
Authors: Kelly G. Dunberg
Abstract: This Note addresses the impact of Florida’s Patients’ Right to Know About Adverse Medical Incidents (commonly known as Amendment 7) on the peer review process and the quality of healthcare in Florida. Enacted in 2004 as an amendment to the Florida Constitution, Amendment 7 provides citizens access to records and reports of past adverse medical incidents involving doctors, hospitals, and healthcare providers. Critics of Amendment 7 argue that peer review privilege protections are necessary to maintain high-quality healthcare in Florida, pointing to the need to encourage candid and vigorous evaluations by physicians of their colleagues. In contrast, Amendment 7 supporters argue that it provides Florida patients with valuable information to aid in their choice of physicians.
PubDate: Wed, 17 Oct 2012 10:20:29 PDT
- Popular Originalism' The Tea Party Movement and Constitutional Theory
Authors: Rebecca E. Zietlow
Abstract: The U.S. Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the Constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism—constitutional interpretation outside of the courts—to invoke originalism as interpretive method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look to history to determine the fixed “original” meaning of the Constitution, which they hold to be binding on contemporary interpreters, regardless of subsequent historical or political developments. Popular constitutionalists study the way in which constitutional interpretation has been influenced by historical developments and explore the use of constitutional theory to bolster constitutional arguments.
PubDate: Wed, 17 Oct 2012 10:20:28 PDT
- Toward a Specific Intent Requirement in White Collar Crime Statutes: How
the Patient Protection and Affordable Care Act of 2010 Sheds Light on the
“General Intent Revolution”
Authors: Elizabeth R. Sheyn
Abstract: The recent passage of the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, ACA), has altered the landscape of health care and health insurance. However, it has also served to highlight the revolution in the intent requirement for white collar crimes. In particular, the ACA lowers the intent requirement for several health care fraud statutes from “specific intent to defraud” to “general intent to deceive,” which is consistent with federal courts’ recent trend of not requiring proof of the defendant’s knowledge of the law before finding a violation of a particular statute proscribing a so-called “white collar crime.” In contrast to some of the ACA’s other substantive provisions, the constitutionality of these provisions has not yet been considered by federal courts or evaluated by scholars.
PubDate: Wed, 17 Oct 2012 10:20:28 PDT
- Nineteenth Century Personal Jurisdiction Doctrine in a Twenty-First
Authors: Charles W. "Rockey" Rhodes
Abstract: The initial twenty-first century personal jurisdiction decisions from the Supreme Court reveal that personal jurisdiction doctrine has not changed much since the nineteenth century. The nomenclature has changed, realism has replaced formalism, some fictions purportedly have been discarded, and the adjudicatory reach of courts has somewhat expanded, but the doctrine retains the same conceptual core—the social contract philosophical tradition limiting the scope of governmental authority to those establishing the requisite relationship with the sovereign.
PubDate: Wed, 17 Oct 2012 10:20:27 PDT
- The Model Penal Code’s Wrong Turn: Renunciation as a Defense to
Authors: R. Michael Cassidy et al.
Abstract: While the Model Penal Code was certainly one of the most influential developments in criminal law in the past century, the American Law Institute (ALI) took a seriously wrong turn by recognizing “renunciation” as a defense to the crime of conspiracy. Under the Model Penal Code formulation, a member of a conspiracy who later disavows the agreement and thwarts its objective (for example, by notifying authorities of the planned crime in order to prevent its completion) is afforded a complete defense to conspiracy liability. This defense has enormous implications for crimes involving national security and terrorism, which are typically planned covertly and involve extensive coordination among multiple actors.
PubDate: Wed, 17 Oct 2012 10:20:26 PDT
- The Open Road and the Traffic Stop: Narratives and Counter-Narratives of
the American Dream
Authors: Nancy Leong
Abstract: American culture is steeped in the mythology of the open road. In our collective imagination, the road represents freedom, escape, friendship, romance, and above all, the possibility for a better life. But our shared dream of the open road comes to a halt in the mundane reality of the traffic stop—a judicially authorized policing procedure in which an officer may pull over a vehicle if she has cause to believe the driver has committed even the most minor traffic violation. I examine the cultural texts—books, movies, songs—celebrating the open road and juxtapose them against those documenting the traffic stop. The traffic stop, I conclude, interrupts the open road narrative closely associated with the American dream. Those stopped most frequently—in particular, racial minorities—are consequently denied full participation in an abiding national fantasy.
PubDate: Wed, 17 Oct 2012 10:20:25 PDT
- Preserving Legal Avenues For Climate Justice In Florida Post-American
Authors: Allison Fishman
PubDate: Wed, 17 Oct 2012 10:20:22 PDT
- Adapting Laws For A Changing World: A Systemic Approach To Climate Change
Authors: Victor B. Flatt
Abstract: This Essay suggests that policy responses in climate change adaptation must be addressed and that focusing on adapting laws may be a good way to undertake this work. Following a review of existing scholarship and normative theories concerning law generally, environmental law, climate change, and adaptation, this Essay then proposes a template for approaching the adaptation of laws. This template would (1) examine where climate change puts pressure on the operation of laws; (2) seek to alter the implementation of that law or to alter the law itself to hew closely to the law’s original purposes; and (3) make these alterations in the most efficient manner possible while also correcting any distributive reallocations. Where the law’s original purposes cannot be accommodated or are so broad as to fail to constitute a clear legislative principle, policy changes should be made in the democratic forum, not by an administrative process. The Essay concludes with examples from working groups implementing the template approach.
PubDate: Wed, 17 Oct 2012 10:20:21 PDT
- Critical Habitat And The Challenge Of Regulating Small Harms
Authors: Dave Owen
Abstract: This Article investigates how the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on “adverse modification” of “critical habitat.” That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 “biological opinions,” interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, this Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse modification prohibition to provide habitat protection. It also assesses the extent to which these groups are providing habitat protection by invoking other Endangered Species Act provisions. This Article concludes that although agency practice and some judicial decisions substantially depart from statutory requirements, with problematic results, the agencies are still providing substantial habitat protection through other means. It then considers the implications of these findings, first for ongoing debates about Endangered Species Act implementation and reform and then for broader discussions about legal strategies for responding to small environmental harms and the incremental degradation they cause.
PubDate: Wed, 17 Oct 2012 10:20:21 PDT
- Balancing Compassion And Risk In Climate Adaptation: U.S. Water, Drought,
And Agricultural Law
Authors: Robert W. Adler
Abstract: It is inevitable that the world will experience a significant amount of global warming before efforts to mitigate the buildup of greenhouse gases (GHGs) in the atmosphere can even begin to succeed. Therefore, adaptation to climate change impacts, as well as mitigation, will be necessary to deal with climate disruption. In designing climate change adaptation efforts, a looming issue is how to balance the need and compassionate impulse to provide financial and other relief to victims of climate disruption impacts with the equally compelling need to reduce the overall risk of those impacts. U.S. water, drought, and agricultural law and policy provide a good example of how past disaster relief efforts have sought to compensate drought victims or to insulate them against the effects of drought, but in the process have encouraged behavior that increases long-term risk and vulnerability. For example, past and ongoing water and agricultural law and policy encourage production of crops with high water demand and with inefficient irrigation methods, even in arid regions, and fail to provide significant incentives for sustainable water use. In the long run, a more “compassionate” approach, particularly as a strategy for climate change adaptation, is to implement systemic policies to reduce vulnerability to drought and other climate-induced disasters by increasing the sustainability of various economic sectors in advance. For example, drought should be defined such that governmental relief is available only for impacts that are beyond the range of reasonable predictability; and drought relief should be conditioned on actions to use water more sustainably, and thereby to reduce drought vulnerability. Similarly, agricultural policy should provide incentives to shift production, particularly of water-intensive crops, to regions with increasing, rather than decreasing, water supply. These efforts to balance compassion and risk will become increasingly important as drought and other impacts of climate disruption become more frequent and more severe.
PubDate: Wed, 17 Oct 2012 10:20:20 PDT
- Planetarian Identity Formation And The Relocalization Of Environmental Law
Authors: Sarah Krakoff
Abstract: Local food, local work, local energy production-all are hallmarks of a resurgence of localism throughout contemporary environmental thought and action. The renaissance of localism might be seen as a retreat from the world’s global environmental problems. This Article maintains, however, that some forms of localism are actually expressions, appropriate ones, of a planetary environmental consciousness. This Article’s centerpiece is an in-depth evaluation of local climate action initiatives, including interviews with participants, as well as other data and observations about their ethics, attitudes, behaviors, and motivations. The values and identities being forged in these initiatives form the basis for timely conceptions of the human relationship with the planet, which in turn provide grist for environmental law and policy design. One overarching conclusion is that environmental laws, even those aimed at solving problems of planetary scale, should include elements that foster localism. The reasons to do so are twofold and strangely complementary. First, in an instrumentalist vein, sustained attitude and behavior changes are most likely to be accomplished through the positive feedbacks between personal and community norms. Second, if we fail to rein in carbon emissions as a global matter, at least some communities will have nurtured the attitudes, behaviors, and patterns of living that might be most adaptive to the resource challenges and scarcities of a climate-changed world. By fostering the planetarian identity, localism therefore has the potential to redeem environmental law, even in the face of its potential failure.
PubDate: Wed, 17 Oct 2012 10:20:19 PDT
- An Empirical Assessment of Climate Change In The Courts: A New
Jurisprudence Or Business As Usual'
Authors: David Markell et al.
Abstract: With the demise of climate legislation in Congress, and the Supreme Court’s rejection of climate-related lawsuits brought under federal common law, rapt attention has turned to the Environmental Protection Agency’s (EPA) efforts to bring greenhouse gases into the regulatory fold. Certainly, as the works in this special issue of the Florida Law Review demonstrate, EPA is not the only important player in the climate arena; indeed, as I will reluctantly suggest, the Agency’s efforts here appear to be waning rather than waxing. Even so, before turning to other aspects of the problem of climate change, discussed in other works in this issue, it is worth taking stock of where EPA is now, how it came to this point, and how it might proceed from here. While legal scholarship seeking to assess the impact of litigation on the direction of climate change policy is abundant and growing in leaps and bounds, to date it has relied on and examined only small, isolated pieces of the vast litigation landscape. Without a complete picture of what has and has not been within the sweep of climate change litigation, it is difficult to offer a robust evaluation of the past, present, and future of climate change jurisprudence. Based on a comprehensive empirical study of the status of all (201) climate change litigation matters filed through 2010, this Article is the first to fill those gaps and assess the state of play of climate change in the courts. It concludes that the story of climate change in the courts has not been one of courts forging a new jurisprudence, but rather one of judicial business as usual. Part I of the Article outlines the scope of climate change litigation, explaining what qualifies as climate change litigation in our study, our methodology for identifying and coding case attributes, and our typology of the claims that have been or likely will be made as climate change moves relentlessly forward. Part II then presents and assesses the major theme revealed from our empirical study and largely missing from commentary on climate change litigation-that a siege-like battle between “pro” and “anti” regulation interests has led to an increasingly robust and complex litigation landscape but with mixed results for both sides. Drawing from those findings, Part III takes on a set of empirical and normative questions designed to summarize and assess the climate change litigation experience and its impacts on the content and institutions of climate policy. It is evident at all levels of inquiry that courts have taken a “business as usual” approach to climate change, resisting litigants’ attempts to make courts a locus of direct policymaking, but courts nevertheless have influenced the policy content and its institutional contours dramatically. We extract these themes from the full experience of climate change litigation and suggest fruitful paths of research to develop a better understanding of the role and impact of the courts in the climate change policy arena. Part IV then stretches a bit from the confines of our empirical study and findings to speculate about the future of climate change litigation.
PubDate: Wed, 17 Oct 2012 10:20:19 PDT
- Introduction: Climate Change at EPA
Authors: Lisa Heinzerling
Abstract: With the demise of climate legislation in Congress, and the Supreme Court’s rejection of climate-related lawsuits brought under federal common law, rapt attention has turned to the Environmental Protection Agency’s (EPA) efforts to bring greenhouse gases into the regulatory fold. Certainly, as the works in this special issue of the Florida Law Review demonstrate, EPA is not the only important player in the climate arena; indeed, as I will reluctantly suggest, the Agency’s efforts here appear to be waning rather than waxing. Even so, before turning to other aspects of the problem of climate change, discussed in other works in this issue, it is worth taking stock of where EPA is now, how it came to this point, and how it might proceed from here. The basic storyline of EPA’s posture toward greenhouse gas regulation is familiar to many, and I will sketch only the broad outlines here. In brief, I see three stages to EPA’s actions and attitudes: denial, acceptance, and bargaining. The correspondence of these stages to several of the famous stages of grief is intended to highlight the regression in EPA’s development, rather than to suggest that trying to address climate change is a form of grief (though grief it must necessarily entail, if one is clear-eyed about the science on the matter).
PubDate: Wed, 17 Oct 2012 10:20:18 PDT