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

{"title":"Civil Recourse and Separation of Wrongs and Remedies","authors":"Arthur Ripstein","doi":"10.2139/SSRN.1893588","DOIUrl":"https://doi.org/10.2139/SSRN.1893588","url":null,"abstract":"In developing their Civil Recourse theory of tort law, John Goldberg and Benjamin Zipursky seek to separate Civil Recourse from Corrective Justice by showing that tort law does not work in the ways in which corrective justice theory says that it must. The strategy of separation, in turn, rests on a separation between wrongs and remedies, a separation between ideas of risk and ideas of ordinariness, a separation between abstract characterizations of rights and contingent social norms, and, finally, a separation between a wrong done against the plaintiff and her power to exact a remedy. I argue that none of these separations can be made.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"11 1","pages":"9"},"PeriodicalIF":0.0,"publicationDate":"2011-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88799025","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 Morality of Jingle Mail: Moral Myths about Strategic Default","authors":"C. Bridgeman","doi":"10.2139/ssrn.1808221","DOIUrl":"https://doi.org/10.2139/ssrn.1808221","url":null,"abstract":"The recent bursting of the housing bubble led to a wave of defaults on home mortgages. Many, no doubt most, of the defaults are due to an inability to pay. But an increasing number of homeowners are engaging in “strategic default,” that is, they are deciding not to pay their mortgage even though they could afford to pay. In the industry the term “jingle mail” suggests an image of borrowers who mail the keys to the bank and walk away from the house and the mortgage. The moral acceptability of strategic default has been the subject of much discussion in the popular press, the blogosphere, and even in academic circles. In this article I address several arguments that strategic default is morally acceptable, and show why these arguments are lacking.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2011-04-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78362010","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":"Iqbal and Interpretation","authors":"Karen Petroski","doi":"10.2139/SSRN.1746090","DOIUrl":"https://doi.org/10.2139/SSRN.1746090","url":null,"abstract":"Assessing a year’s worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this article explains how the sharp divisions in that commentary mask a deeper consensus. What unsettles many observers about Iqbal is its suggestion that district court judges must interpret a civil complaint in order to decide whether it states a claim. As this article explains, although Iqbal does have this implication, it has been very difficult for us to see that this is in fact a virtue of the decision. Pleading scrutiny always has involved interpretation; if we find that suggestion troubling, it is only because the vocabulary we have long used to discuss the role and treatment of civil pleadings represses this fact. Ultimately, that vocabulary is rooted in a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. The article describes the ways this account has shaped the debate over Iqbal and the contingent historical reasons for its dominance. Looking forward, it shows how Iqbal makes possible a genuinely new agenda for procedural scholarship, one drawing from work on other types of legal interpretation. And it suggests some of the specific ways in which this perspective can guide implementation of Iqbal.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"39 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2011-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80184210","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":"Civil Recourse as Mutual Accountability","authors":"Stephen Darwall, Julian Darwall","doi":"10.1093/acprof:oso/9780199662586.003.0011","DOIUrl":"https://doi.org/10.1093/acprof:oso/9780199662586.003.0011","url":null,"abstract":"In The Second-Person Standpoint (SPS) and a number of papers since, I have attempted to work out a theory of moral obligations as involving mutual accountability between equals, where the latter, I argue, is irreducibly second personal, since it entails an equal authority we have to address claims and demands to one another and ourselves.1 As many writers have pointed out, moral obligations concern the part of morality that is modeled conceptually on legal, or as Sidgwick called them, “quasi-jural,” concepts of responsibility and authoritative demands and claims.2 What we are morally obligated to do is not just what morality recommends or what there is good, weighty, or perhaps even conclusive reason to do from the moral point of view. It is what morality requires. It is what is legitimately demanded of us as moral agents or persons, just as legal obligations concern what the law demands of citizens subject to it. Illegal and","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"15 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78797487","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":"Cultural Cognition at Work","authors":"Paul M. Secunda","doi":"10.2139/SSRN.1529886","DOIUrl":"https://doi.org/10.2139/SSRN.1529886","url":null,"abstract":"Cultural cognition theory provides an anthropological and psychological-based theory about how values actually influence judicial decisionmaking. It suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decision-making. Applying these insights to two controversial United States Supreme Court labor and employment decisions, this Article contends that judges in many instances are not fighting over ideology, but rather over legally-consequential facts. This type of disagreement is particularly prevalent in labor and employment law cases where the factual issues that divide judges involve significant uncertainty and turn on inconclusive evidence. This distinction between ideology and cultural cognition is critical for two connected reasons. First, the identification of cultural worldviews, as opposed to partisan or legal bias, as a major influence on judicial decisionmaking assists in bringing legitimacy back to the judging function. Second, social science research indicates that techniques exist for judges to counteract their susceptibility to this form of biased decisionmaking.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"9 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2010-02-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88217518","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":"Pearson, Iqbal, and Procedural Judicial Activism","authors":"Goutam U. Jois","doi":"10.2139/ssrn.1472485","DOIUrl":"https://doi.org/10.2139/ssrn.1472485","url":null,"abstract":"In its most recent term, the Supreme Court decided Pearson v. Callahan and Ashcroft v. Iqbal, two cases that, even at this early date, can safely be called “game-changers.” What is fairly well known is that Iqbal and Pearson, on their own terms, will hurt civil rights plaintiffs. A point that has not been explored is how the interaction between Iqbal and Pearson will also hurt civil rights plaintiffs. First, the cases threaten to catch plaintiffs on the horns of a dilemma: Iqbal says, in effect, that greater detail is required to get allegations past the motion to dismiss stage. But a plaintiff who says too much at the pleading stage risks getting kicked out by Pearson: if the allegations are very specific, a court (deciding qualified immunity) will conclude that the constitutional right, if any, is so specific as not to be clearly established. If the litigant pleads at a level of generality to avoid the ‘clearly established’ problem, he will get tripped up by Iqbal, because the allegations will be deemed “conclusory” or too general to be “plausible.”Iqbal and Pearson also take divergent tacks with regard to the role of lower courts. In Pearson, lower courts are entrusted to decide which step of qualified immunity to decide first. Iqbal also expands courts’ authority by empowering them to determine “plausibility” based on their “common sense.” But at the same time, Iqbal takes away the district court’s ability to manage litigation (by using procedures explicitly provided in the Federal Rules and previously approved by the Supreme Court) in order to shield public officials, relying instead on the rather blunt instrument of dismissing the case entirely. The cases expand and restrict lower courts’ discretion, but only do so in a way that makes it easier to dismiss civil rights lawsuits.Pearson and Iqbal exemplify what I call “procedural judicial activism”: the invention of procedural rules to significantly curtail the availability of remedies in civil litigation, especially in the context of civil rights claims. In short, although Pearson and Iqbal are thought of as affecting different, and distinct, areas of law, they interact in ways that are detrimental to civil rights plaintiffs. This interaction was not addressed by the Court in either case, nor has it been recognized in the academic literature thus far.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2009-09-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87612088","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":"Implicit Bias, Election '08, and the Myth of a Post-Racial America","authors":"J. Rachlinski, G. Parks","doi":"10.2139/SSRN.1456509","DOIUrl":"https://doi.org/10.2139/SSRN.1456509","url":null,"abstract":"The election of Barack Obama as the Forty-fourth President of the United States signals that the traditional modes of thinking about race in America are outmoded. Commentators and pundits have begun to suggest that the election of a Black man to the nation's highest office means that the United States has entered a post-racial era in which civil rights laws are becoming unnecessary. Although President Obama's election means that explicit, open anti-Black racism has largely faded, an analysis of the campaign's rhetoric and themes suggests that unconscious racism is alive and well. Rather than suggest a retreat from traditional civil rights protections, the 2008 election calls for maintaining and enhancing efforts to ensure that civil rights laws to address less virulent, less explicit forms of racism that persist.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"130 1","pages":"4"},"PeriodicalIF":0.0,"publicationDate":"2009-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74847394","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":"Domestic Violence and the Workplace: The Explosion of State Legislation and the Need for a Comprehensive Strategy","authors":"Deborah A. Widiss","doi":"10.2139/SSRN.1027726","DOIUrl":"https://doi.org/10.2139/SSRN.1027726","url":null,"abstract":"In recent years, domestic violence legislation has migrated out of its traditional locus in family law and criminal law to include a rapidly growing body of employment law. The new laws respond to a relatively simple problem: Economic security is one of the most important factors in whether a victim of domestic violence will be able to separate from an abusive partner, but domestic violence often interferes with victims' ability to maintain jobs, thus causing job loss that further traps victims in abusive relationships. By providing supports to victims and empowering employers to take direct legal action against perpetrators of actual or threatened workplace violence, the new legislation helps employers and employees work together to address a shared interest in reducing the effects of domestic violence on the workplace. Thus addressing domestic violence as an ýemploymentý issue bolsters other strategies for combating domestic violence. Equally important, because the vast majority of victims of domestic violence are women, the new legislation complements traditional employment laws, such as Title VII and the Family and Medical Leave Act, that seek to promote sex equality by addressing a significant, though little recognized, barrier to women's full participation in the workplace. This article situates the burgeoning body of new state legislation within developments in domestic violence law and employment law, particularly scholarship relating to accommodation of individual needs within the workplace. It shows that domestic violence legislation modeled on employment law accommodation mandates, such as the Family and Medical Leave Act or the Americans with Disabilities Act, import provisions in those laws that excuse relatively small or resource-poor employers. By contrast, new laws borrowing from criminal justice, public health, or unemployment insurance models either impose costs on all employers or spread costs among employers. The article concludes by making several recommendations for future reform, including better capitalizing on potential synergies among various approaches, consciously facilitating cooperation between employers and employees, and considering use of public expenditures to address certain workplace-related expenses as part of the larger societal commitment to combat domestic violence.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"98 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2008-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80904524","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 Agencies Act: A Reassessment of the Ossification Critique of Judicial Review","authors":"M. Seidenfeld","doi":"10.2139/SSRN.1020313","DOIUrl":"https://doi.org/10.2139/SSRN.1020313","url":null,"abstract":"In many instances, an agency has to decide whether to devote its resources to address a problem that is within its statutory authority to regulate. Many scholars of \"hard look\" judicial review of agency regulation have asserted that such review raises the costs to agencies of regulating and thereby discourages agencies from regulating when they should. This article takes a closer look at that assertion by providing an overview of the rational incentives and non-rational influences on those within agencies to prefer taking action versus doing nothing. In reviewing these influences the article notes that the costs and benefits of regulation to society differ greatly from the costs and benefits that the agency experiences when it regulates. In particular, it points out that evaluating the effect of judicial review on decisions whether to regulate must take into account all the influences on this decision. The article suggests that whether judicial review's discouragement of agency action is appropriate depends on the precise context of the environment in which the decision whether to regulate arises. The article concludes by analyzing two notorious agency decisions to forego or abandon regulation, for which judicial review has been blamed for inappropriately discouraging agency action. Using the influence on agency propensities to act that the article identifies, it shows that the both the importance of judicial review and the propriety of its impact on the agency decisions not to regulate are much more complex than the simple picture of blame that critics of judicial review have attempted to draw.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"8 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2007-10-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82566186","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":"Drinking from a Deep Well: The Public Trust Doctrine and Western Water Law","authors":"C. N. Brown","doi":"10.2139/SSRN.894088","DOIUrl":"https://doi.org/10.2139/SSRN.894088","url":null,"abstract":"American water law reflects the diverse geography and population patterns of our country. The arid western states provide fertile ground to consider the burdens of a rapidly growing region on scarce water resources. This Article's thesis is that the public trust doctrine is being underutilized by those western states to address their water scarcity dilemma. I recommend extending the geographical scope of the public trust doctrine to encompass all bodies of water that serve the public welfare, even minimally. In the Article, I compare an expanded public trust doctrine against a more aggressive application of the prior appropriation doctrine. I discuss why the prior appropriation doctrine and its commodification of water rights is a lesser alternative to rethinking the public trust doctrine. Additionally, I discuss the problem of vested rights and takings challenges that may arise in the wake of an expanded public trust concept. I use the recent United States Supreme Court case Kelo v. Town of New London to illustrate the similarities between the Court's \"traditionally broad understanding of public purpose\" in the context of takings jurisprudence and the historically dynamic nature of the public trust doctrine. My Article explores the proper role of the public trust doctrine in responding to historic mistakes in this country's approach to water use and conservation in the arid west.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"35 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2006-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89233471","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}