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Disingenuous and Somewhat Deplorable A Look at Hospitals\u27 Use of Healthcare-Provider Liens to Reap a Windfall
Get PDFThe Impact of Autonomous Vehicles on Urban Land Use Patterns
Get PDFAutonomous vehicles are coming. The only questions are how quickly they will arrive, how we will manage the years when they share the road with conventional vehicles, and how the legal system will address the issues they raise. This Article examines the impact the autonomous vehicle revolution will have on urban land use patterns. Autonomous vehicles will transform the use of land and the law governing that valuable land. Automobiles will drop passengers off and then drive themselves to remote parking areas, reducing the need for downtown parking. These vehicles will create the need for substantial changes in roadway design. Driverless cars are more likely to be shared, and fleets may supplant individual ownership. At the same time, people may be willing to endure longer commutes, working while their car transports them. These dramatic changes will require corresponding adaptations in real estate and land use law. Zoning laws, building codes, and homeowners\u27association rules will have to be updated to reflect shifting needs for parking. Longer commutes may create a need for stricter environmental controls. Moreover, jurisdictions will have to address these changes while operating under considerable uncertainty, as we all wait to see which technologies catch on, which fall by the wayside, and how quickly this revolution arrives. This Article examines the legal changes that are likely to be needed in the near future. It concludes by recommending that government bodies engage in scenario planning so they can act under conditions of ambiguity while reducing the risk of poor decisions.
Fiduciary Boilerplate: Locating Fiduciary Relationships in Information Age Consumer Transactions
Get PDFThe result of applying general contract principles to consumer boilerplate has been a mass transfer of unrestricted rights to use and sell personal information from consumers to companies. This has enriched companies and enhanced their ability to manipulate consumers. It has also contributed to the modern data insecurity crisis. Information age consumer transactions should create fiduciary relationships between firm and consumer as a matter of law. Recognizing this fiduciary relationship at law honors the existence of consumer agreements while also putting adaptable, contextsensitive limits on opportunistic behavior by firms. In a world of ubiquitous, interconnected, and mutable contracts, consumers must trust the companies with which they transact not to expose them to economic exploitation and undue security risks: the very essence of a fiduciary relationship. Firms owe fiduciary duties of loyalty and care to their customers that cannot be displaced by assent to boilerplate. History, doctrine, and pragmatism all support this positio
Rationing the Constitution vs. Negotiating it: Coan, Mud, and Crystals in the Context of Dual Sovereignty
Get PDFIn RATIONING THE CONSTITUTION: HOW JUDICIAL CAPACITY SHAPES SUPREME DECISION-MAKING, Professor Andrew Coan makes the provocative argument that judicial capacity is the most determinative factor in the Supreme Court’s constitutional interpretation, especially regarding such critical realms as equal protection, takings, and the separation of powers. He contends that the Court’s legitimate anxiety over managing workflow to the federal bench operates more powerfully to shape its responses to questions raised in these areas of law than any alternative theory of constitutional interpretation, including doctrinal models popular most among legal academics and strategic models more popular among political scientists. Some readers will be more persuaded than others on different parts of Coan’s argument, but I was interested in the way that his theory of judicial capacity intersects with my own theory of negotiated governance within Balanced Federalism, which recognizes the interpretive value of bilaterally negotiated outcomes in federalism contexts where judicial capacity is low. Coan and I share the deep concern that the Court’s federalism jurisprudence sometimes misuses categorical rules in contexts where they are necessarily under- or over-inclusive, failing to account for critical nuances in complex cases, controversies, and policy dilemmas. His critique of how capacity constraints cause the Court to reach sub-optimal solutions in the federalism context provides theoretical support for my claim that federalism interpretation should be shared among all three branches, according to the distinctive capacity each brings to the interpretive enterprise. This article assesses strengths and weaknesses in Coan’s book and explores the support his capacity theory provides for my own analysis of the role of interpretive intergovernmental bargaining in contexts of jurisdictional overlap. Part I provides an overview of Coan’s book, paying homage to the explanatory power of his model; the good advice he provides litigants advocating around capacity constraints; and the admonitions he offers about how the limits of judicial capacity should temper expectations about the role of the courts in a legal system within which courts are only one component. Part II considers the intersection between Coan’s work and mine on Negotiating Federalism, starting with our shared skepticism of the Court’s use of “bright-line” categorical rules in this arena and its implications for judicial competence. I argue that his analysis buttresses use of intergovernmental bargaining in certain federalism disputes. Part III nods to some of the limits of Coan’s theory, suggesting that in his robust critique of categorical rules, he nevertheless applies one himself, conflating important differences between the bright-line categorical deference the Court applies in some contexts and the deferential but discretionary review it applies in others. It suggests that the capacity model is already accounted for within the predominant models of judicial interpretation from which Coan distinguishes it. Finally, it encourages Coan to think more seriously about a systemic remedy for the problem he identifies, in which limited judicial capacity leads to sub-optimal decision-making. It presses for clarification whether the solution is to alleviate capacity constraints by expanding the judiciary or reducing its demands by shifting power to the political branches
FSU Law Focus - 09/25/2020
Get PDFFrom the Dean: FSU Law one of the nation’s top seven law schools for human rights law by preLaw magazine; First DCA Judges Participate in Special Q&Awith FSU Law Students; Alum Profile: Jacquelyn Thomas Watts (’14); Student Profile: 3L Jessica Andrewshttps://ir.law.fsu.edu/fsu-law-focus/1116/thumbnail.jp
FSU Law Focus - 03/27/2020
Get PDFFrom the Dean: Remote classes and virtual enrichment sessions begin; Law & Risk Management Spring Break Course Taught Virtually; Alum Profile: Peter M. Kramer (’84); Student Profile: 3L Allison Barketthttps://ir.law.fsu.edu/fsu-law-focus/1221/thumbnail.jp
FSU Law Focus - 03/13/2020
Get PDFFrom the Dean: Legislative Intern Program; Faculty Profile: Judge Adam S. Tanenbaum; Alum Profile: Shannon B. Hartsfield (’95); Student Profile: 3L Julisa Renaudhttps://ir.law.fsu.edu/fsu-law-focus/1344/thumbnail.jp
The Federal Estate Tax Exemption and the Need for Its Reduction
Get PDFOne of the central components of the Nation\u27s transfer tax system is the federal estate tax exemption. This is the amount that taxpayers can pass free of transfer tax imposition. While over the last 100 years the size of this exemption has fluctuated, Congress most recently increased it exponentially, jeopardizing the vitality of the entire transfer tax regime and potentially sapping it of its strength. To enhance the Nation\u27s fiscal solvency and to reduce wealth inequality, this analysis contends that Congress must reduce the estate tax exemption (and, along with it, the gift and generation-skipping transfer tax exemptions). Furthermore, it proposes ways for Congress to efficiently and equitably accomplish this goal. As a practical matter, the failure to take action will relegate the Nation\u27s transfer tax system to obscurity
Moderating the Use of Lay Opinion Identification Testimony Related to Surveillance Video
Get PDFTraditionally, under the silent witness theory, when video surveillance recordings are authenticated and admitted at trial, the video speaks for itself. However, with increasing frequency, courts have permitted witnesses to provide lay opinion identification testimony about individuals in the surveillance video. The testimony is offered as lay opinion testimony that assists the jury, particularly in cases where the video is of poor quality, the subject\u27s face is difficult to see, or the subject\u27s appearance has changed by the time of trial. Recent state court opinions (including several state supreme courts as a matter of first impression) have upheld the admission of lay opinion identification testimony in an overly lenient manner that should be addressed. The primary problem with this kind of lay opinion testimony is that it poses challenges to effective crossexamination, particularly in criminal cases in which the witness is a law enforcement officer. Cross-examination that attempts to test the officer\u27s testimony may be ineffective or, worse, harmful, to the extent that it attempts to explore the officer\u27s familiarity with a criminal defendant. Courts have developed some procedural safeguards to protect against abuse of this form of testimony, but they are insufficient and fail to ensure effective cross-examination in all circumstances. This Article proposes additional safeguards that courts can use to moderate the use of lay opinion identification testimony related to surveillance video, while permitting such testimony when it is helpful to the jury in determining an issue of fact
In the Shadows: Third-Party Litigation Funding Agreements and the Effect Their Nondisclosure Has on Civil Trials
Get PDFThird-party litigation funding ( TPLF ) has become an increasingly common practice in the United States in recent years, especially in the field of civil litigation. In civil practice, TPLF entails a third party funding the litigation costs of an actual party to a case and in turn the third party receives a share of any damages if the suit is successful. Often, the court and jury are not aware of any TPLF agreement, as there are currently few rules requiring disclosure of the existence of such agreements or the identity of TPLF financiers. And while generally entities engaged in TPLF have no connection to the parties, in at least one high-profile case the third party financing the litigation had a personal animus against the defendants. Further, there is evidence suggesting the plaintiff\u27s litigation strategy in that case was driven by this animus between the third party and the defendants and had an effect on the overall outcome of the lawsuit. This trend raises numerous concerns, namely whether TPLF arrangements should be allowed to take place in the shadows while courts and juries are none the wiser. Opponents of the practice as it currently stands argue TPLF agreements should be disclosed in the name of fairness to the parties and in the spirit of transparency. Proponents of the status quo, on the other hand, argue TPLF allows individuals who would otherwise not be able to afford the high cost of litigation to vindicate their rights and that disclosure of these agreements will have improper effects on jury verdicts. As of early 2020, Wisconsin and West Virginia are the only states with laws requiring disclosure of TPLF agreements; however, there are currently proposals in the United States Senate and in many states that would enshrine rules requiring TPLF disclosure. Similar proposals have also been made before the Federal Advisory Committee on Civil Rules of Practice and Procedure. This Note argues for the adoption of these proposed rules requiring disclosure of TPLF agreements. It will approach this from the perspective of third parties funding the litigation costs of plaintiffs (as opposed to funding defense cases). This Note will also show that mandatory TPLF disclosure aligns more closely with the notions of fairness that underline the main tenets of the American civil system. And because disclosure should have no effect on the substantive facts and laws at issue in a dispute, it should thus not impact verdicts. It could, however, play a role in calculating potential punitive damages, namely in cases where the TPLF is motivated by personal animus against one of the parties. Finally, this Note will rebut arguments against mandatory disclosure by showing that any concerns regarding the adoption of such rules are outweighed by fundamental concerns for fairness and transparency