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College of Law

Florida State University

 

Florida State University Law Review

Volume 43, No. 4


Commemorative Pieces

In Appreciation: Don Weidner
Charles W. Ehrhardt

Twenty-five years after he was first appointed, Donald J. Weidner stepped down on June 30, 2016 as Dean of the Florida State University College of Law. During his deanship, the FSU law school was remarkably transformed. In the fall of 1975, I attended the Association of American Law Schools’ hiring meeting in Washington, D.C. as chair of the Faculty Ap-pointments Committee. One evening after the day’s interviews with pos-sible faculty candidates were completed, Dean Josh Morse and I were relaxing in our interview suite. Professor Joe Jacobs, who was then a member of our faculty, brought his friend and former colleague by the suite to say hello. His friend was Don Weidner, who at the time was on the law faculty at Cleveland State. We hit it off that evening, and the following fall Don came to Florida State and fortunately never left. Read more...

Donald Weidner and the Modern Law of Partnerships
Robert W. Hillman

It is my great pleasure to offer some thoughts on the contributions of Don Weidner to partnership law. I can summarize my conclusion on his contributions in one sentence: No person has contributed more than Don Weidner to the shape and content of modern partnership law. In fact, there is not even a close second. But before discussing his legacy, I must offer a disclaimer: Don Weidner is a friend. Actually, he is a close, dear friend. And we have been friends for a very long time. Perhaps this colors my judgment, but I think not. One of Don’s wonderful personal qualities is that he does not call attention to himself or his accomplishments. This is endearing but quite unique in an age in which self-promotion is the norm in academic and professional communities. Although Don refuses to highlight his own impressive accomplishments, there is nothing to stop this friend from doing so and discussing the impact Don has had on modern partnership law. Read more...

Don Weidner: Man of Action
Margaret "Peggy" A. Rolando

There are many apt descriptions of Don Weidner: Dean Emeritus of the College of Law, professor, scholar, leader, innovator, strategic think-er, friend, mentor, coffee fanatic, natty dresser. Many leaders claim to be transformational but few really are. Don Weidner is. Don Weidner pushed the Florida State University College of Law out of its cozy niche. Once content to play second fiddle to the University of Florida, the College of Law is now a nationally ranked, highly competitive law school, competing toe to toe with UF and regularly besting rival regional law school power houses. In an era when the average tenure of a law school dean is less than five years, Weidner’s almost twenty-five years at the helm of the College of Law has given it unprecedented stability, advancement, and connections. Weidner understood that the law school could not excel unless all of its stakeholders—students, faculty, administrators, alumni, and local community—thrived. Weidner demanded excellence from administration, faculty, students, and himself. His high expectations have yielded extraordinary results. Read more...

A Tribute to Dean Don Weidner
Rebecca Hanner White

It is a privilege to write in honor of Dean Don Weidner and to celebrate his contributions to legal education. Don’s impact, significant as it has been on Florida State, is not limited to his own law school. His impact has been felt throughout the legal academy, and I am grateful the editors of this tribute issue have provided me the opportunity to write about Don’s influence on our profession. Don Weidner is an original, someone unwilling to accept the status quo and quite willing to shake things up to make them better. That has been a defining aspect of Don Weidner since his entry into law teaching. Read more...

Articles

Narratives of Gene Patenting
Jorge L. Contreras

The decades-old debate over gene patenting in the United States reached a climax in June 2013 with the Supreme Court’s decision in Association for Molecular Pathology v. Myri-ad Genetics. The Myriad case was remarkable for many reasons, not least of which because it engaged hundreds of scientists, physicians, patients, lawyers, activists, and policy makers, each expressing strong, often opposing, views regarding the case and gene patenting more generally. From this multitude of voices emerged six distinct narratives, which I term the Science, Innovator, Administrative, Access, Dystopian, and Congestion narratives. In this Article, I trace the origins of each of the narratives in Myriad from press accounts, published literature, and the extensive record in the case. I then assess how each narrative influenced and became incorporated into the resulting decisions. This analysis demonstrates the strong influence of narrative on judicial decisionmaking, not only in the area of gene patenting, but more broadly across common law jurisprudence. Read more...

What Personal Jurisdiction Doctrine Does — And What It Should Do
Katherine Florey

Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine. Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court’s assertion of power over a particular defendant and case may have two undesirable consequences. First, the burden on the defendant of having to appear before a certain type of court or in a particular location may be unacceptably high. Second, a court’s jurisdictional overreaching may encroach upon the sovereignty of other states or nations and in so doing, may foster uncertainty about which sovereign’s substantive standards apply to particular conduct. Personal jurisdiction, to some extent, addresses both of these issues. But with respect to both goals, it has competition. Multiple protections, including venue and forum non conveniens, help to ensure that defendants are not unfairly burdened by litigation. An even greater variety of doctrines, such as dormant commerce clause protections, choice-of-law restrictions, and limits on punitive damages, restrict the ability of states to regulate distant conduct and thereby exceed their sovereign boundaries. In light of these additional protections, this Article suggests reorienting personal jurisdiction toward functions not well served by other doctrines, and proposes three possible goals that meet this standard: providing redundant protections to foreign defendants, screening out cases likely to create difficult questions of choice-of-law constitutionality, and adding the factor of purposeful availment to the analysis of defendant fairness. Surveying the four personal jurisdiction cases the Court has recently decided, this Article finds that they have addressed the first of these goals to some extent, but have slighted the second and third. Read more...

Distributive Justice and Contract Law: A Hohfeldian Analysis
Marco Jimenez

According to Aristotle, justice consists of giving each person his due: equal members of society should be treated equally, and unequal members, unequally. This justice, in turn, comes in two flavors: distributive and corrective. Distributive justice—which has as its purview society at large—is concerned with distributing society’s shares to individuals according to merit. Whereas, the purview of corrective justice concerns voluntary (e.g., contracts) and involuntary (e.g., torts) transactions, and it seeks to rectify unjust alterations in the distributive scheme by returning the parties to the position they occupied before the distributive scheme was altered, which is to say, before a particular harm occurred. Even today, Aristotle’s classification of these two types of justice holds a firm grip on the judicial imagination, and perhaps nowhere is this truer than in contract law. There, it is taken for granted that the distributive shares held by members of society are determined both prior to, and outside of, contract law. The distributive question having been settled, it is believed that the proper role of contract law is merely to (a) facilitate the just exchange of these distributive shares by allowing parties to bargain and form agreements with one another and (b) rectify any unjust alteration to these previously established distributive shares. To couch this in Aristotelian terms, contract law should be concerned with enforcing the rules of corrective justice—which will facilitate and rectify the just exchange of previously allocated distributive shares—but should not be concerned with the initial distribution of those shares. Read more...

Stays of Injunctive Relief Pending Appeal: Why the Merits Should Not Matter
Jill Wieber Lens

In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal. Stays play an important role in appellate judicial review but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the merit factor, is not supported historically, theoretically, or practically. Instead courts should look to whether a stay is necessary—due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. Courts must also explain their application of these stay factors. Otherwise, their decisions seem unjustified, inconsistent, and illegitimate. Read more...

Notes

Filling the Gap of Domestic Violence Protection: Returning Human Rights to U.S. Victims
Melanie Kalmanson

The prevalence of domestic violence in the United States indicates a need for increased governmental protection. The current, state-based system inadequately serves victims of domestic violence, and previous U.S. Supreme Court rulings indicate that the U.S. Constitution leaves the federal government in an impotent position for providing any form of protection for domestic violence victims. Pursuant to the American Declaration on the Rights and Duties of Man, domestic violence violates one’s human rights, or those fundamental to personhood. By ratifying the American Declaration through the Charter of the Organization of the American States, the United States established its responsibility for protecting U.S. citizens from this human rights violation. Thus, this Note contends that a federal statute creating federal liability against a state for failing to protect domestic violence victims should be enacted in accordance with the United States’ responsibility under the American Declaration. Read more...

The Case for a Uniform Definition of a Leveraged Loan
Zachary L. Pechter
Over the past twenty years, leveraged loans and high yield bonds have converged into similar instruments, sparking a debate as to whether leveraged loans should be regulated as securities like high yield bonds. This Note recognizes problems with the current regulatory framework for leveraged loans and shows that leveraged loans are not securities and should not be regulated as such. Instead of regulating leveraged loans as securities, which would likely be more costly than beneficial and contrary to the SEC’s mission statement, the SEC should promulgate a uniform definition of a leveraged loan. This solution would alleviate problems such as regulatory arbitrage and the opaqueness of the market while avoiding the costs associated with securities regulation. This Note concludes by offering a definition of a leveraged loan to provide a model for the SEC if it decides to adopt this solution. Read more...