Florida State University law review. Florida State University. College of Law最新文献

{"title":"THE HIPAA PRIVACY RULE AT AGE 25: PRIVACY FOR EQUITABLE AI.","authors":"Barbara J Evans","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"50 4","pages":"741-810"},"PeriodicalIF":0.0,"publicationDate":"2024-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC13327739/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"148378458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Two (Thousand) and Twenty: Developments in Asset Management Litigation","authors":"Aaron C. Morris","doi":"10.2139/ssrn.3936758","DOIUrl":"https://doi.org/10.2139/ssrn.3936758","url":null,"abstract":"As managers have scrambled to protect their declining revenue streams in recent years, they’ve found solace from courts, legislatures, and independent fund directors. While the market generally appears to be driving lower management fees, fund directors and judges have done little to aid the process, even in connection with transactions resulting in a change in a fund's investment adviser. This paper addresses developments in excessive management fee litigation as well as suboptimal board practices utilized in connection with asset manager mergers, which present fund directors with an opportunity to leverage lower fees and other improvements for the benefit of fund shareholders. Fund directors should take heed and obtain value for shareholders when such opportunities arise.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"41 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72531626","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"40. Disability Equality and Prenatal Testing","authors":"","doi":"10.1525/9780520961944-045","DOIUrl":"https://doi.org/10.1525/9780520961944-045","url":null,"abstract":"I. WHAT IS DISABILITY “REALLY” LIKE, OR HOW MISINFORMED ARE PEOPLE ANYWAY? 318 A. Models of Disability 318 B. Disability and the Normal Opportunity Range 322 C. Having and Lacking Capacities 324 II. THE LIMITS OF PROGRESS 327 A. The Persistence of Negative Attitudes Toward People With Disabilities ... 328 B. Translating Law Into Practice 330 III. THE “MESSAGE” OF SELECTING FUTURE CITIZENS 332 A. Clinical Practice 334 B. Rationales for Test Development 335 C. Line-Drawing 337","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67341563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"More Unfair Claims About Fair Use in Australia","authors":"G. Barker","doi":"10.2139/ssrn.3184614","DOIUrl":"https://doi.org/10.2139/ssrn.3184614","url":null,"abstract":"This paper extends an earlier review of five studies that have been used by a number of large companies and private advocacy groups to promote major copyright policy changes in Asia Pacific. The earlier paper identified how some of the key arguments used by the proponents of these changes were based on faulty or misleading interpretations of data. \u0000This paper reviews a new report that has been recently released, written for Google, and authored by Deloitte: Access Economics (2018). This review again isolates a number of false claims being made, this time about the economic effects of fair use in Australia, including four key flawed assertions in the paper. \u0000Assertion 1: that substantial downstream value is lost as a result of current copyright law in Australia. The downstream uses of copyright works involved include: text and data mining, digital analytics, cloud computing, transformative, educational and informational uses involving existing copyright works. \u0000Assertion 2: that this downstream value is lost due to current copyright law in Australia reducing cumulative innovation, and that Fair Use can remedy that. \u0000Assertion 3: that creativity is booming in the digital world and that introducing Fair Use in Australia will benefit creative output. \u0000Assertion 4: that transaction costs would be lower under a Fair Use system. \u0000As we shall discuss this presents an unbalanced picture of the likely impacts of adopting Fair Use in Australia, the nature and extent of the real current market problems, the scope for market solutions to the alleged problems, the nature and role of copyright and of transaction costs. \u0000The paper is indeed based on a fundamental misinterpretation of copyright. It fails to adequately acknowledge that copyright merely requires the creator's consent, and provides the basis for a market in creative works and does not prevent use. The paper then does not adequately explain why any copyright market might be expected to fail in the manner alleged, nor why the proposed legal intervention (fair use) might be expected to improve outcomes. \u0000The paper also doesn’t present any real new evidence, particularly drawing on the so-called “big data” that must now be available on digital copyright market transactions. A more useful contribution would further have examined the practical limitations of licensing markets, and the extent to which these might be addressed by new digital technologies, such as artificial intelligence and distributed ledger technology in order to enhance creative market growth, investment and innovation.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"45 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-05-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81223278","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Asking the Right Questions","authors":"L. C. George","doi":"10.23943/PRINCETON/9780691170374.003.0001","DOIUrl":"https://doi.org/10.23943/PRINCETON/9780691170374.003.0001","url":null,"abstract":"","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"244 1","pages":"449-475"},"PeriodicalIF":0.0,"publicationDate":"2018-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74701384","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Best and Worst of Contracts Decisions: An Anthology","authors":"Daniel D. Barnhizer, S. Burnham, Charles R. Calleros, Larry T. Garvin, Nadelle Grossman, F. Guerra-Pujol, J. Harrison, H. Keren, Michael P. Malloy, D. O’Gorman, D. Post, V. Ricks, Rachel S. Arnow-Richman, Richard R. Carlson, Mark P. Gergen, Kenney F. Hegland, Nancy S. Kim, Nathan B. Oman, J. F. Powers, Cheryl B. Preston","doi":"10.2139/SSRN.3041444","DOIUrl":"https://doi.org/10.2139/SSRN.3041444","url":null,"abstract":"The common law of contract is an intellectual and political triumph. In its mature form, it enables judges whose ideological goals may differ to apply doctrines that provide the right to make enforceable promises; with legislation, the common law also provides proper limits on that right. Lately, scholars have produced a flood of contract law theory that enriches our thinking about and grounding for contract law norms. But the real work of common law development has always occurred in the trenches — in judicial decisions. In those trenches and on the framework built there, some decisions matter far more than others, and jurists, scholars, and teachers draw on these key decisions to do their work. In the following collection of essays, scholars deeply familiar with judicial opinion in the common law of contract — twenty authors who have a collective 497 years writing, teaching, and thinking about contract law — identify the best and worst of contracts cases. Many of the cases are staple examples for practical and theoretical contracts scholarship. Many are taught to thousands of students each year. Many are routinely cited by courts. The essays explain, rebuke, extol, entertain, and inspire. They are brief but substantive. They set a basis for future commentary and establish a collective standard against which contracts decisions may be judged. They are vital study for contract law adjudication, scholarship, and teaching.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"13 1","pages":"887"},"PeriodicalIF":0.0,"publicationDate":"2018-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80035880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The [̶T̶a̶k̶i̶n̶g̶s̶] Keepings Clause: An Analysis of Framing Effects from Labeling Constitutional Rights","authors":"Donald J. Kochan","doi":"10.2139/SSRN.3018289","DOIUrl":"https://doi.org/10.2139/SSRN.3018289","url":null,"abstract":"Did you know that the “Takings Clause” was not called the “Takings Clause” by any court before 1955? That was the first time that any court of any jurisdiction referred to the provisions regarding takings of private property in either the federal or state constitutions under the label “Taking Clause.” Did you know that justices of the U.S. Supreme Court did not use that moniker “Taking Clause” in any opinion before 1978? Given this history, the phrase “takings clause,” whether an apt descriptor or not, certainly cannot be justified as the dominant way to refer to these provisions by contemporaneous usage at the Founding nor by the weight of time. This Article gathers and analyzes originally compiled data sets on the usage of labels for this provision across time in court opinions, scholarship, and elsewhere. Acknowledging the fact that the label “takings clause” is of relatively modern invention, this Article questions its reign and evaluates the impact of such a “frame” for the rights protected. \u0000 \u0000When framing what is supposed to be a constitutional protection by reference in its label to the power controlled, rather than the right granted, the rights’ component of the provision is diminished. For example, we do not label the rights to freedom of speech or press in the First Amendment as the “Censorship Clauses.” We call them — quite appropriately with deference to the rights and with a presumption against their infringement — the “Free Speech” and “Free Press” clauses. This Article posits that the provisions regarding eminent domain are really about respecting means by which individuals can protect their right to keep property, against a backdrop where individual owners normally retain a right to refuse to sell property. As such, it wonders whether “The Keepings Clause” might be a better alternative label. In the process, the Article applies interdisciplinary insights regarding the power of “framing,” informing our understanding of law in new ways from the fields of psychology, linguistics (including semiotics and cognitive linguistics), and the study of consumer products labeling in marketing and advertising. (That last category is particularly unique; strikingly little scholarship exists applying the expertise of marketing scholars to understand law and legal institutions.) \u0000 \u0000How we frame something affects our impressions of it, our expectations toward it, and our concept of its boundaries and scope. When we frame something in terms of power — like the Takings Clause — we provide greater legitimacy for that power and its exercise and we are likely to tolerate more of it across a wider scope. Conversely, when we frame something in terms of the rights protection — like with the “Keepings Clause” — the presumption begins with an expectation of keeping and erects a higher bar for a deviation from that position. Anyone who cares about constitutional rights will find transferable lessons in the work. Seeing how framing operates with the property ","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"1 1","pages":"1021"},"PeriodicalIF":0.0,"publicationDate":"2017-09-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81637397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Problem with Inference for Juvenile Defendants","authors":"J. Carroll","doi":"10.2139/SSRN.2956566","DOIUrl":"https://doi.org/10.2139/SSRN.2956566","url":null,"abstract":"Much of criminal law relies on proof by inference. In criminal law, fact finders untangle not only what happened, but why it happened. It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts – the world in which they occurred but also the fact finder’s own world. Recent developments in neuroscience suggest that in the context of juvenile defendants, this moment of interpretation is fraught with particular risks. The emergence of fMRI technology has provided significant insights into adolescent brain development and its effect on adolescent thought processes. As a result, scientists (and courts) recognize that adolescent actors are more likely to engage in risky behavior, fail to properly comprehend long term consequences and over value reward. In short, science has proven what most long suspected: kids think and react differently than do adults. Although criminal law has long accounted for this difference procedurally – most evidently in the creation of an independent juvenile justice system – there has been little exploration of its significance in the realm of substantive criminal law. This Article argues that what is known of adolescent brain development suggests that adult fact finders are poorly positioned to accurately assess a juvenile defendant’s state of mind, because adults lack the perspective of those whose actions and words they seek to interpret – juvenile defendants. Rather than asking fact finders to perform the impossible task of placing themselves in the adolescent’s mind, substantive criminal law should instead acknowledge the difference in perspective and permit evidentiary presentation and jury instructions akin to defenses that rely on the defendant’s actual, as opposed to imagined, perspective.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"3 1","pages":"1-58"},"PeriodicalIF":0.0,"publicationDate":"2017-04-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78839993","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Administrative License Renewal and Due Process — A Case Study","authors":"Delcianna J. Winders","doi":"10.2139/SSRN.2952062","DOIUrl":"https://doi.org/10.2139/SSRN.2952062","url":null,"abstract":"Scholars have recently noted the paucity of scholarship on administrative licenses as especially significant given the prevalence — indeed ubiquity — of administrative licenses today. This Article contributes to filling that void by tackling an aspect of administrative licensing that has received especially little attention and, as a result, has been a source of serious confusion: license renewals. As this Article details, administrative license renewal practices raise interesting and important questions about administrative law and procedural due process. Does one have a property interest in a license after that license expires by its terms? Is an agency’s decision not to renew a license more akin to denying an initial license application or to suspending or revoking an active license? \u0000 \u0000This Article answers these questions and then applies those answers to one particular context — the federal Animal Welfare Act (AWA). Our nation’s most important animal protection law, the AWA governs more than 2.5 million animals held by nearly eleven thousand locations. And yet, by all accounts, it is woefully underenforced. As this Article discusses, that underenforcement is seriously aggravated by the practice of automatically renewing AWA licenses, even in the face of egregious violations. After analyzing recent litigation that has tried to challenge this practice, the Article concludes with policy proposals to address the automatic renewal problem while also assuring fairness.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"26 1","pages":"439-592"},"PeriodicalIF":0.0,"publicationDate":"2017-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85822057","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Antitrust Jurisprudence of Neil Gorsuch","authors":"J. Newman","doi":"10.2139/SSRN.2928414","DOIUrl":"https://doi.org/10.2139/SSRN.2928414","url":null,"abstract":"In 2017, the U.S. Senate confirmed Neil M. Gorsuch’s nomination to serve on the Supreme Court. Like Justice Stevens before him, Gorsuch’s primary area of expertise is antitrust law. Like Stevens, Gorsuch both practiced and taught in the field before joining the bench. As a judge for the Tenth Circuit Court of Appeals, Gorsuch penned multiple substantive antitrust opinions. \u0000 \u0000His unique expertise will likely situate Gorsuch as one of the Court’s leading voices on antitrust matters for decades to come. A close examination of his prior antitrust opinions thus offers vital insight into his approach to antitrust principles and execution. This essay provides the first in-depth descriptive and prescriptive analysis of Gorsuch’s antitrust jurisprudence. While it reveals (perhaps unsurprisingly) a great deal of sophistication vis-a-vis antitrust doctrine, it also identifies several areas for improvement. \u0000 \u0000While serving on the Tenth Circuit, Gorsuch effectively expanded upon—even rewrote—existing precedent, including Justice Scalia’s notable opinion for the majority in Trinko. For normative force, Gorsuch’s jurisprudence at times rested upon logical fallacies and an unduly one-sided error-cost framework. This essay offers prescriptive suggestions for Gorsuch and other jurists to follow in future cases, with an eye toward producing a more transparent, coherent, and welfare-maximizing body of antitrust law.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"45 1","pages":"225"},"PeriodicalIF":0.0,"publicationDate":"2017-03-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79563415","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}