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

{"title":"Duress as Rent-Seeking","authors":"M. Seidenfeld, Murat C. Mungan","doi":"10.2139/ssrn.2379691","DOIUrl":"https://doi.org/10.2139/ssrn.2379691","url":null,"abstract":"The doctrine of duress allows a party to a contract to avoid its contractual obligations when it was induced to enter that contract by a wrongful threat while in a dire position that leaves it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress,” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful. This Article proposes that a threat should be wrongful when it is motivated by rent-seeking. Other scholars have previously proposed tests to identify wrongful threats, but they have not focused on a rent-seeking principle. Oren Bar-Gill and Omri Ben-Shahar, for instance, have proposed that an economic threat is wrongful when the threat is not credible. Steve Shavell has suggested that a threat is wrongful when it seeks to exploit a monopoly position of the threat-maker that was created by its own harmful conduct. Our criterion differs from that of Bar-Gill and Ben-Shahar by specifying the circumstances under which a threat that is made credible by investment should be considered wrongful. Our criterion also differs from that of Shavell because we advocate that a threat should not be deemed wrongful even in some situations where the threat-maker created the dire situation that makes the threatened party vulnerable to the threat. We also carve out an exception to rent-seeking for contract negotiation in which a party turns down an offer that would provide it economic value. Although such conduct technically is rent-seeking, such negotiation provides economic value because it is the least cost mechanism for parties to determine whether a potential contract will create economic surplus. The article then discusses the implications of our criteria for settlements of contract disputes and contract modification.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"2 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2014-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83809964","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":"A Quantity-Driven Solution to Aggregate Grouping under the U.S. Sentencing Guidelines Manual","authors":"Kevin Bennardo","doi":"10.2139/SSRN.2148133","DOIUrl":"https://doi.org/10.2139/SSRN.2148133","url":null,"abstract":"The United States Sentencing Guidelines Manual mandates the grouping of many multiple counts of conviction on an aggregate basis. In these instances, the Guidelines aggregate a specific quality of the multiple counts — often the amount of drugs or money — and determine the punishment based on the aggregated quantity. This article first undertakes a review of the purposes of grouping under the Guidelines and concludes that grouping under the Guidelines’ other grouping provisions should precede grouping on an aggregate basis in order to minimize the influence of prosecutorial charging decisions. Second, the article analyzes the text, commentary, and effect of the aggregate grouping guideline and concludes that aggregate grouping is only appropriate when the offense level determination is based primarily on quantity or some other aggregable quality of the offense. Next, the article formulates a mathematical ratio by which to test whether the offense level for an individual offense guideline is determined based primarily on an aggregable or non-aggregable quality of the offense. The ratio is then applied to every offense guideline in the Manual as well as to the distribution of each controlled substance and listed chemical. This data is reproduced in a series of appendices. The article highlights anomalies in the data and identifies the specific offense guidelines that are improperly either subjected to or excluded from aggregate grouping under the current scheme. Lastly, in an appendix, the article sets forth the text of a proposed revised aggregate grouping guideline.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"107 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2012-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81351850","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":"Militarized Criminal Organizations and Human Rights Court Review of State Protection Efforts: Evidence from Colombia","authors":"David L. Attanasio","doi":"10.2139/SSRN.2127902","DOIUrl":"https://doi.org/10.2139/SSRN.2127902","url":null,"abstract":"Regional human rights courts, such as the Inter-American Court of Human Rights, currently apply a threshold requirement for reviewing state failures to protect against serious human rights violations that excludes from review much of the contemporary criminal organization violence in Latin America, such as that committed by drug cartels in Mexico or the new armed groups in Colombia (sometimes called Bacrim). However, this article will argue — through a close examination of the new illegal armed groups in Colombia — that the justiciability principles underlying this restrictive threshold requirement in fact support much broader review of state failures to protect against the widespread violence from these militarized criminal organizations. These principles, which determine the scope of human rights court review of state protection efforts, counsel different degrees of human rights court involvement in state protection failures depending on the particular circumstances at issue. When applied to the violence from contemporary Latin American militarized criminal organizations, review need not be restricted to avoid imposing an unreasonable burden on states, and should be extended in response to the substantial risk of inadequate state protection against such groups. As a result, the problem of these extremely violent organizations should be understood at least in part as one of human rights, since human rights principles not only limit the methods by which states oppose these groups, but also impose an enforceable obligation to protect against them.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"20 1","pages":"341"},"PeriodicalIF":0.0,"publicationDate":"2012-08-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83264907","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":"Anti-Anti-Evasion in Constitutional Law","authors":"Brannon P. Denning, Michael B. Kent","doi":"10.2139/ssrn.2126733","DOIUrl":"https://doi.org/10.2139/ssrn.2126733","url":null,"abstract":"In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their function in optimizing constitutional enforcement is likely worth the costs they impose.But the Court’s use of AEDs is not foreordained. In notable areas of constitutional doctrine, the Court has declined to create AEDs in situations that seemingly invite it to do so. This paper addresses this phenomenon, which we term “anti-anti-evasion,” and seeks to understand why the Court employs AEDs in some contexts but not in others. After furnishing a number of examples of anti-anti-evasion, we identify and evaluate the reasons the Court gives for declining to create AEDs. Because these reasons do not tell the whole story, we also pose a working hypothesis – i.e., the Court will not create AEDs where it believes that the constitutional principle is adequately protected by robust political safeguards, and this occurs primarily in cases involving taxing or spending decisions, including the provision of government-subsidized goods and services. Support for this hypothesis is found in a number of the Court’s AED and anti-anti-evasion decisions, including the much-awaited decision in National Federation of Independent Business v. Sebelius.Apart from academic curiosity, the hypothesis (if correct) has broader implications. First, it helps to demonstrate that the formulation of constitutional doctrine is a type of risk regulation where the Court employs decision rules in an effort to achieve optimal (as opposed to maximal) protections. Second, it expands on earlier work by other scholars that considered possible reasons for why the Court might choose one set of decision rules over another, thereby contributing to the ongoing effort to describe accurately what courts actually do when they decide cases. Third, our hypothesis hopefully will encourage the Justices to be more intentional in selecting among available decision rules, and perhaps more transparent in the reasoning behind the adoption of one set over others. Finally, our hypothesis should prove useful to practicing lawyers in crafting constitutional arguments.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"7 1","pages":"397"},"PeriodicalIF":0.0,"publicationDate":"2012-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76284143","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 Origin of Parental Rights: Labor, Intent, and Fathers","authors":"Dara E. Purvis","doi":"10.2139/SSRN.2115696","DOIUrl":"https://doi.org/10.2139/SSRN.2115696","url":null,"abstract":"Most theories of parentage fail to explain the genesis of the right to parent – for example, why does a biological relationship generate parental rights? This paper shows that the law of parental rights mirrors theories of acquiring property, and that the law has shifted over time, from favoring a property right based in genetics to a Lockean theory of property rights earned through labor. The growth of Lockean labor-based theories is epitomized in reforms to parentage laws that incorporate functional theories of parenting, meaning that adults who perform caretaking work that creates a significant relationship with children are recognized as legal parents, even if they are not genetically related to the child. A labor-based understanding of parentage may even reach to gestational work performed by the pregnant woman. This Lockean labor-based theory, however, poses a challenge to male parental rights, because men have fewer opportunities to contribute labor for the benefit of the child. This disparity is heightened in the context of unwed biological fathers, who must create a significant relationship with the child before gaining constitutional parental rights. This paper argues that intent to be a father, as demonstrated through behavior preparing for a child’s arrival, should be incorporated into labor-based theories of parentage. Including an intent-based approach will thus address a gendered inequality in existing parental law.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"113 1","pages":"645-696"},"PeriodicalIF":0.0,"publicationDate":"2012-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80672824","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":"Must Licenses Be Contracts? Consent and Notice in Intellectual Property","authors":"M. Patterson","doi":"10.2139/SSRN.2009934","DOIUrl":"https://doi.org/10.2139/SSRN.2009934","url":null,"abstract":"Intellectual property owners often seek to provide access to their patented or copyrighted works while at the same time imposing restrictions on that access. One example of this approach is “field-of-use” licensing in patent law, which permits licensees to use the patented invention but only in certain ways. Another is open-source licensing in copyright law, where copyright owners typically require licensees that incorporate open-source software in other products to license those other products on an open-source basis as well. Surprisingly, though, the legal requirements for granting restricted access are unclear. The source of the lack of clarity is the ill-defined nature of a “license,” which is the usual means of granting access to intellectual property. Must a license be a contract? If so, then the imposition of restrictions presumably must satisfy the rules of contract formation. Or could a license be merely a unilateral commitment to allow limited access to intellectual property, as many open-source advocates contend? If so, then an intellectual property owner could grant access to its property while imposing restrictions to which a licensee has not consented, and of which the licensee might not even be aware. This article argues that the weight of judicial authority and sound policy support a contractual approach. A requirement that license restrictions be imposed only by contract ensures that intellectual property owners obtain both the consent of licensees to the restrictions and consideration sufficient to make the contract enforceable. As in contract law more generally, these requirements facilitate certainty, predictability, and care in entering productive relationships. Consent is especially important as intellectual property is passed downstream through the distribution chain, because it ensures that downstream market participants are aware of the limitations on their use of intellectual property. Simple notice, which some have proposed as an alternative to contract, has shortcomings that make it a poor criterion for the establishment of infringement liability. The article suggests, though, that in some circumstances notice of an upstream violation of a contractual license should indeed be sufficient to establish liability. Specifically, when a downstream user intentionally induces infringement by an upstream supplier, the downstream user should be liable. In such circumstances, the intent element serves as a substitute for the assent of contract law.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"113 1","pages":"105"},"PeriodicalIF":0.0,"publicationDate":"2012-02-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79848371","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":"Better Mistakes in Patent Law","authors":"Andres Sawicki","doi":"10.2139/SSRN.1915288","DOIUrl":"https://doi.org/10.2139/SSRN.1915288","url":null,"abstract":"This Article analyzes patent mistakes — that is, mistakes made by the patent system when it decides whether a particular invention has met the patentability requirements. These mistakes are inevitable. Given resource constraints, some might even be desirable. This Article evaluates the relative costs of patent mistakes, so that we can make better ones.Three characteristics drive the costs of mistakes: their type (false positive or false negative), timing (early or late), and doctrinal basis (utility, novelty, nonobviousness, and so on). These characteristics make some mistakes more troubling than others.This Article compares the costs of making mistakes of different types, at different times, and on different doctrinal bases. These comparisons produce some surprising results — for example, under certain plausible conditions, it will be better to wrongly refuse to grant a patent than to wrongly invalidate a patent that had already been granted. The conclusions here have important implications for persistent issues in patent law, including how closely courts should scrutinize the validity of issued patents and how the Patent and Trademark Office should allocate scarce enforcement resources.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"1 1","pages":"735"},"PeriodicalIF":0.0,"publicationDate":"2011-08-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83618737","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":"WHAT'S TERRORISM GOT TO DO WITH IT? THE PERILS OF PROSECUTORIAL MISUSE OF TERRORISM OFFENSES","authors":"michal buchhandler-raphael","doi":"10.2139/SSRN.1909505","DOIUrl":"https://doi.org/10.2139/SSRN.1909505","url":null,"abstract":"Federal and state legislation does not contain explicit “terrorism” offenses per se. Instead, various criminal provisions prohibit a wide array of specified crimes that are commonly perceived as terrorism-related crimes. While these offenses do not make the definition of terrorism an element of the crime, the terrorism classification is inferred based on features that typically – though not necessarily -- characterize crimes of terrorism, such as the scope of the harm intended or inflicted and the nature of the technical measures used to carry out the attack. These offenses, however, are too broad and ambiguous, covering a wide variety of crimes unrelated to the terrorism context. The Article’s key thesis is two-pronged: It suggests that empirically, the criminal justice system has failed to accurately distinguish between “terrorism” and “ordinary” crime. This failure may be attributed both to a doctrinal problem of definition: the distinct features of terrorism, mainly the defendant’s political motivation, are not made elements of the offense, and to an institutional problem of misclassification: unlimited prosecutorial discretion enables prosecutors to misuse terrorism-related offenses in cases that are unrelated to terrorism. Furthermore, the Article contends that normatively, drawing clear legal boundaries between “ordinary” crime and terrorism is a warranted enforcement policy, due to the numerous implications of misclassification. The Article examines the risks and unintended consequences of existing prosecutorial practices, ranging from treating similarly situated defendants differently to opening the door to additional applications of terrorism-related offenses in contexts such as drug trafficking.To alleviate these concerns, the Article proposes legislative reform designed both to constrain prosecutorial discretion and to limit the use of terrorism-related offenses only to actual crimes of terrorism by making specific intent to coerce governments to change their actions and policies a necessary element of terrorism crimes.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-08-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83223698","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":"Why There is No Duty to Pay Damages: Powers, Duties, and Private Law","authors":"Nathan B. Oman","doi":"10.2139/SSRN.1906753","DOIUrl":"https://doi.org/10.2139/SSRN.1906753","url":null,"abstract":"This essay was part of a symposium on the rise of civil recourse theory. It contributes to this debate by defending a simple but counterintuitive claim: There is no duty to pay damages in either tort or contract law. The absence of such a duty provides a reason for believing that civil recourse provides a better account of private law than does corrective justice. Corrective justice is committed to interpreting the private law as creating duties for wrongdoers to compensate their victims. In contrast, civil recourse sees the law as empowering plaintiffs against defendants. My argument is that the a careful analysis of the doctrines surrounding pleading, payment of damages, accord and satisfaction, and judgments reveals that our law gives plaintiffs the power to extract wealth from defendants but does not impose duties of defendants to compensate those that they have wronged. The structure of my argument is borrowed from a much older exchange between Oliver Wendell Holmes, Jr., who thought that contract law imposed a duty to perform or pay damages and Frederick Pollock, who denied that that the payment of damages was part of the duty to keep a contract. I side with Pollock against Holmes, and think that the Englishman’s argument provides a useful model in the debate between corrective justice and civil recourse.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"55 1","pages":"8"},"PeriodicalIF":0.0,"publicationDate":"2011-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81641614","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":"Omission Suspicion: Juries, Hearsay, and Attorneys' Strategic Choices","authors":"J. Sevier","doi":"10.2139/SSRN.1905828","DOIUrl":"https://doi.org/10.2139/SSRN.1905828","url":null,"abstract":"Attorneys understand that presenting evidence consists of a series of strategic choices. Yet legal scholars have not studied whether jurors are sensitive to the trial strategy that underlies those choices. Do jurors question why an attorney has omitted what jurors consider the “best” evidence of some trial fact and has instead put forth weaker evidence? Do they attempt to understand the motivation behind that choice, and does that affect their legal judgments?Six original experiments explore these questions in the context of hearsay evidence. The experiments reveal a ubiquitous finding: jurors carefully scrutinize a party’s strategy for presenting hearsay, and this has a substantial impact on their verdicts. Moreover, jurors scrutinize an attorney’s strategic decision to proffer hearsay regardless of the identity of the legal actor, regardless of the type of case, and regardless of the type of hearsay presented. These findings demonstrate that when evaluating hearsay evidence, jurors are attuned to factors that the law may not appreciate. This has substantial implications for legal policy and practice. These findings suggest a new dimension of competency with respect to how jurors evaluate evidence. They also suggest that the normative debate over hearsay evidence — that jurors do not think critically about it — should change. Finally, the findings present a cautionary tale to trial practitioners who make ground-level decisions about hearsay evidence.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"254 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2011-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73043268","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}