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

{"title":"Trying to Make Peace With Bush v. Gore","authors":"Richard D. Friedman","doi":"10.2139/SSRN.270294","DOIUrl":"https://doi.org/10.2139/SSRN.270294","url":null,"abstract":"This article, written in part in response to one by Judge Richard Posner, examines the legal issues involved in and setting the context for the United States Supreme Court's momentous decision in Bush v. Gore. It concludes as follows: (1) At no point after Election Day did the Florida Legislature have authority to pick a slate of electors or to prescribe how electors were to be picked. (2) Florida law did not clearly preclude the state from continuing any recount beyond December 12, whatever the circumstances. The common assumption has been that determination of which slate of electors Florida voters had selected needed to be completed by December 18, the date prescribed by federal law for electors to vote. This assumption is false. Though a timely determination by Florida would have simplified matters, Florida did not have to make a determination at all; if the matter was unresolved before it came to Congress, then resolution would have been Congress's responsibility. (3) The Fourteenth Amendment argument accepted by a majority of the Supreme Court was very weak and did not fit well with the shut-down of the recount ordered by the Court. (4) A decision like that of the Florida Supreme Court requiring manual recounts does raise an Article II issue. But instead of emphasizing whether the Florida Supreme Court relied on sources other than legislation, or on whether the decision of that court was a usurpation of legislative authority, the critical Article II issue in this case depends on whether the decision of that court was a plausible one given the state of pre-existing law. (5) The Florida court's decision to order recounts did not fail to meet this standard. (6) The entire matter - at least the entire Article II matter - should have been left to the political process prescribed by the Twelfth Amendment to the Constitution and by federal statute.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"34 1","pages":"16"},"PeriodicalIF":0.0,"publicationDate":"2001-06-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82711203","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":"Judging Judging: The Problem of Second-Guessing State Judges' Interpretation of State Law in Bush v. Gore","authors":"Harold J. Krent","doi":"10.2139/SSRN.270383","DOIUrl":"https://doi.org/10.2139/SSRN.270383","url":null,"abstract":"Three United States Supreme Court Justices in Bush v. Gore would have held that the Florida Supreme Court's decision ordering a recount violated Article II Section 1's requirement that \"each state shall appoint, in such Manner as the Legislature thereof may direct\" electors for President and Vice-President. They reasoned that the Florida state court's \"interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required\" and thereby violated Article II, Section 1. Judicial interpretation can make new law and rob individuals or other parties of desired predictability and stability Despite the seeming affront to federalism, the paper argues that the three Justices were on firm ground in holding that the U.S. Supreme Court can review a state court's construction of state law in order to protect a federal right, just as the Court has done in the Contracts Clause and criminal fair notice cases (Bouie). Indeed, in those two contexts, the Court has asked whether state judicial pronouncements changed prior law. Moreover, there is sound reason to conclude that the Article II, Section 1 claim should be justiciable. Irrespective of the historical pedigree, however, the concurrence's application of the doctrinal principles is nothing short of startling. When the Court has reviewed state law decisionmaking in the Bouie and Contracts Clause contexts, it has only disputed state court construction of state law on rare occasions, and it has concluded that state court decisions made \"new\" law even more rarely. Through a mixture of fictions and judicial legerdemain, federal judges in the Bouie and Contracts Clause contexts have assiduously avoided concluding that state court decisions changed prior law. They have relied on a variety of fictions to conclude that the decisions under review were foreshadowed in some way, whether because of prior dicta or developments in other jurisdictions. Courts backed off enforcing doctrine in those two contexts for a number of reasons. First, drawing a line between interpretation and making law is notoriously slippery. Few benchmarks exist to determine when interpretation stops and lawmaking starts. Although the Florida Supreme Court decision was in no way dictated by precedent, it found support in the language of the text and seemed, at a minimum, plausible. The U.S. Supreme Corut has consistently failed to disturb far more questionable state court deicisions in the Bouie and Contracts Clause contexts. Second, federal courts retreated from full enforcement of federal guarantees in light of the respect owed state judiciaries. As they began to view state jurists with greater respect, there was less justification for scrutinizing state court decisionmaking so carefully. The concurrence's opinion, in contrast, flies in the face of the Court's frequent paens to the fundamental role of federalism in our system. Third, equating judicial interpreation with lawmaking provides incentive for disapppoi","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"17 1","pages":"493"},"PeriodicalIF":0.0,"publicationDate":"2001-05-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73304953","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":"Bush V. Gore and the Future of Equal Protection Law in Elections","authors":"Richard L. Hasen","doi":"10.2139/SSRN.262030","DOIUrl":"https://doi.org/10.2139/SSRN.262030","url":null,"abstract":"The Supreme Court's per curiam majority opinion in Bush v. Gore held that a state violates equal protection when its fails to have uniform standards for the recounting of votes during a statewide election contest. Part I of this Article argues that although some have heralded the opinion as the (perhaps unintended) dawn of a new era in the jurisprudence of equal protection in elections, there are good reasons for doubting that the Supreme Court majority intended anyone to take their equal protection holding seriously. Language in the per curiam opinion limits it to the facts of the case, or, at most, to cases where jurisdiction-wide recounts are ordered. Moreover, the Court's own analysis was superficial. It failed to explain or justify its large extension of precedent; it ignored serious standing questions; and, most importantly, the Court appeared to speak the language of strict scrutiny but apply something much less than strict scrutiny. Finally, the kind of equal protection claim favored by the conservative justices in the Bush v. Gore majority is a strong departure from the usual equal protection jurisprudence they favor.Part II of this Article considers not whether the Court meant what it said, but rather what would be the consequences if the Court indeed meant what it said. The equal protection jurisprudence of Bush v. Gore moves election law jurisprudence to an uncharted third level of political equality - equality in the procedures and mechanisms used for voting. Part II explores a range of election law cases that may be subject to a \"third level\" political equality claim. It concludes that, if the case were taken seriously, Bush v. Gore would have great precedential value in changing a host of voting procedures and mechanisms, particularly when challenged prospectively. Part III of this Article explores the benefits, costs, and implications of expanding equal protection to such third-level claims. The benefits of the approach are fairly obvious: a precedent requiring scrupulous equality in the holding of elections will increase resources used to conduct elections. But expanding political equality to the third level would be a mixed blessing. Putting aside costs, three concerns arise with extending equal protection jurisprudence to the nuts-and-bolts of elections. First, third-level claims provide a new reason and a pretext for federal courts to nullify state and local election results. Second, third-level claims undermine federalism. Third, third-level claims create a disincentive for jurisdictions to experiment with new methods of voting, such as internet voting.Finally, it is worth thinking about the doctrinal implications of extending equal protection jurisprudence to the third level. It is unclear whether extension of equal protection to the third level differs meaningfully from arguments calling for greater political equality in terms of electoral structures (such as Justice Marshall's argument in his dissent in Mobile v. Bolden) a","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"11 1","pages":"3"},"PeriodicalIF":0.0,"publicationDate":"2001-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80958906","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":"An Apology for Administrative Law in The Contracting State","authors":"M. Seidenfeld","doi":"10.2139/SSRN.248868","DOIUrl":"https://doi.org/10.2139/SSRN.248868","url":null,"abstract":"This essay responds to Jody Freeman's Article, \"The Contracting State,\" which will soon appear in the symposium on Regulatory Theory and Administrative Law in the Florida State University Law Review. I agree with Freeman's assessment that regulation by agreement between the state and a contractor or regulated entity adds a significant arrow to the quill of regulatory weapons. Like her, I too have concerns about how the courts will address such contracts. I, however, do not see contract mechanisms as a means of providing regulatory accountability, but rather as a means of avoiding the overbreadth of traditional regulation and of assigning roles required by the regulatory state to those best able to perform them. Moreover, I fear that emphasis on contract as a means of providing accountability will lead to incorporation of contract law principles that will seriously undermine the flexibility of current administrative processes. Unlike Freeman, I am not certain that administrative law's lack of explicit reference to contractual processes reflects ignorance. Rather, I believe that current understandings of administrative law recognize that over the past several decades much of regulation has been implemented through contract like processes, and seek to place such processes within a framework that allows administrative agencies leeway to structure and implement regulatory programs as they think best. So viewed, too a great extent administrative law already accommodates contractual bargaining processes, and with merely a little tweaking provides sufficient accountability for most of the types of bilateral regulatory contracts that Freeman discusses. This essay begins by reviewing the potential benefits of regulatory contracts, stressing in particular that those benefits flow from attributes of contractual relationships other than the desire to hold the government accountable for regulatory policy. It goes on to describe what I consider basic understandings of the current adminstrative state - that the principal checks on agency policymaking are procedure and politics. Finally, the essay considers what these understandings imply about how courts should treat the four types of regulatory contracts that Freeman identifies in her principal paper: (i) procurement contracts, (ii) contracts under which private entities perform government services, (iii) agreements between administrative agencies and regulated entities regarding implementation or enforcement of regulations, and (iv) contracts between an agency and private entity that specify the requirements that govern the regulated conduct of the entity. In particular, the essay analyzes how these understandings inform when and how government contracts should be enforceable by the nongovernment party or by the public beneficiaries of these contracts.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"24 1","pages":"215"},"PeriodicalIF":0.0,"publicationDate":"2001-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73925526","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":"Contextualist Answers to Skepticism, and What a Lawyer Cannot Know","authors":"W. Edmundson","doi":"10.2139/SSRN.255238","DOIUrl":"https://doi.org/10.2139/SSRN.255238","url":null,"abstract":"\"How can you defend those people?\" is a question that criminal defense lawyers are expected to answer. Defend what people? Those the lawyer knows to be guilty. The common assumption is that lawyers help clients whom they know to be guilty to escape punishment, and that they bear a personal burden of justifying what they do. But this mistakenly assumes that the lawyer can know that her client is factually guilty. The mistake is revealed by an examination of contextualist theories of knowledge. Inquirers attain knowledge by excluding relevant alternative possibilities, but the range of relevant alternative possibilities is determined partly by the inquirer's role. Epistemologists, for example, must consider a much wider range of possibilities than laypeople; and the best answer to the philosophical skeptic is to point out the role of role in ascriptions of knowledge. In everyday life, we may safely ignore the wild possibilities that epistemologists cannot ignore. But the courtroom is not everyday life; its \"beyond a reasonable doubt\" standard is an extraordinarily exacting one. Criminal defense lawyers are subject to an even more exacting epistemic standard; one which disables them from knowing their clients' factual guilt. The adversary system that creates these \"super-high\" epistemic standards must be justified, but no more (or less) by lawyers than by anyone else. Lawyers need not defend the adversary system under the pressure of redeeming their prima facie wrongdoing. American criminal justice represents a massive prisoner's dilemma, in which harsh penalties and baroque procedural protections (including zealous advocacy) are mutually reinforcing. Freeing criminal defense lawyers from the pressure of justifying themselves (as opposed to the system in which they work) could open possibilities of dialogue and reform.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"7 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2001-01-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82329258","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":"Control and Governance of Transmission Organizations in the Restructured Electricity Industry","authors":"C. Koch","doi":"10.2139/SSRN.234330","DOIUrl":"https://doi.org/10.2139/SSRN.234330","url":null,"abstract":"The electricity industry, the nation's largest, is in the process of restructuring itself, replacing vertically integrated state-specific regulated monopolies with independent firms competing in regional markets. The Federal Energy Regulatory Commission (FERC) has wisely chosen leadership over command for its role in this restructuring. In a broad restructuring regulation, it directed the industry and state regulators to develop new industry designs. These designs must meld competitive generation and marketing segments with a necessarily monopolistic bulk transmission segment. FERC is now engaged in the process of facilitating the development of independent, regional transmission organizations (RTOs). This article examines alternatives for the structure and governance of those organizations. It supports FERC's choice of a regional approach and confirms FERC's authority to order regional organizations, if necessary. It discusses the choice between investor owned and independent models, finding that the independent model offers several advantages and presents fewer dangers than for-profit RTOs. It suggests RTO governance designs, which will be sensitive to the various stakeholders, regulators (federal, state and local), and the other segments of the electricity industry. Lastly, it urges special attention to the design of the dispute resolution processes which will handle the conflicts inherent in a disaggregated electricity industry. Among other things, it suggests that FERC play a leading role in developing ADR processes, including the creation of an independent pool of private ALJs who are expert in the electricity industry.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"25 1","pages":"569-613"},"PeriodicalIF":0.0,"publicationDate":"2000-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80001528","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":"Beyond Efficiency and Procedure: A Welfarist Theory of Regulation","authors":"M. Adler","doi":"10.2139/SSRN.234175","DOIUrl":"https://doi.org/10.2139/SSRN.234175","url":null,"abstract":"Normative scholarship about regulation has been dominated by two types of theories, which I term \"Neoclassical\" and \"Proceduralist.\" A Neoclassical theory has the following features: it adopts a simple preference-based view of well-being, and it counts Kaldor-Hicks efficiency as one of the basic normative criteria relevant to the evaluation of regulatory programs. A Proceduralist theory is concerned, not solely with the quality of regulatory outcomes, but also with the governmental procedures that produce these outcomes: it gives intrinsic significance to the procedures that regulatory bodies follow. (One example of a Proceduralist theory is the civic republican theory of regulation advanced by Mark Seidenfeld; another is the collaborative governance theory advanced by Jody Freeman.) In this article, I criticize both Proceduralist and Neoclassical theories of regulation and then defend a different kind of theory, \"Welfarism.\" Welfarism is close in its spirit to Neoclassicism, but significantly different in its details. Welfarism rejects the simple preference-based view of well-being ? which makes preference-satisfaction both necessary and sufficient for welfare-enhancement ? and adopts instead a novel view, Sophisticated Preferentialism, that makes preference-satisfaction necessary but insufficient. Welfarism also rejects the normative significance of Kaldor-Hicks efficiency, and claims instead that overall well-being is relevant to the evaluation of regulatory programs and projects. (Note that an inefficient project can increase well-being, and that an efficient project can decrease it.) Finally ? and by contrast with Proceduralism ? the Welfarist accords only instrumental, not intrinsic, significance to regulatory procedures. Civic-republican style deliberation, \"collaborative governance,\" participatory procedures, and other approaches to regulatory decisionmaking defended by Proceduralists are valuable only insofar as they produce good regulatory outcomes. A \"good regulatory outcome\" need not be a welfare-maximizing outcome ? distributive and perhaps perfectionist criteria are also relevant here ? but welfare-maximization is a significant part of what matters, normatively speaking, about regulatory outcomes.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"20 1","pages":"241"},"PeriodicalIF":0.0,"publicationDate":"2000-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91047516","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":"How Federal Circuit Judges Vote in Patent Validity Cases","authors":"J. Allison, Mark A. Lemley","doi":"10.2139/SSRN.189512","DOIUrl":"https://doi.org/10.2139/SSRN.189512","url":null,"abstract":"We recently studied the outcomes of every final written patent validity decision at both the district court and Federal Circuit levels between 1989 and 1996. The study produced a variety of interesting statistics on patent validity questions. Using the dataset from that study, and matching it with the panels serving on each case, we describe in this paper how individual Federal Circuit judges voted in patent validity cases during that period. The results may surprise many patent litigators. While there are some interesting differences in voting patterns, our overall conclusion is that the votes of Federal Circuit judges during this period defied easy description. Judges do not fit easily into \"pro-patent\" or \"anti-patent\" categories, or into \"affirmers\" and \"reversers.\" We think this is a good thing for the court system. Still, there are some interesting facts to be found in the data.","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"53 1","pages":"745-766"},"PeriodicalIF":0.0,"publicationDate":"1999-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84729907","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":"Ethics and Professionalism","authors":"Carrie Menkel‐Meadow","doi":"10.4018/978-1-4666-9527-6.ch004","DOIUrl":"https://doi.org/10.4018/978-1-4666-9527-6.ch004","url":null,"abstract":"","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"27 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81932377","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 ANXIETY OF INFLUENCE","authors":"S. Gillers","doi":"10.4135/9781452233222.n6","DOIUrl":"https://doi.org/10.4135/9781452233222.n6","url":null,"abstract":"I. THE RULES OF THE LEGAL PROFESSIONAL 123 II. EXCEPTIONS TO ANXIETY 126 III. LAWYERS WORKING WITH OTHERS 130 IV. WHY THE PROHIBITION IS WRONG 133","PeriodicalId":81266,"journal":{"name":"Florida State University law review. Florida State University. College of Law","volume":"63 1","pages":"123"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79116691","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}