THE CONCEPT OF NATIONAL LAW AND THE RULE OF RECOGNITION
Melvin A. Eisenberg
It is a commonly held position that a rule cannot be a legal rule unless the rule is binding; or to put it differently, that one element that distinguishes legal rules from other kinds of rules is that legal rules are regarded as binding by duly constituted officials—typically, courts—who are called upon to apply them. Thus in addressing the issue whether international law is law, H.L.A. Hart stated that “if . . . the rules of international law are not ‘binding,’ it is surely indefensible to take seriously their classifications as law; for however tolerant the modes of common speech may be, this is too great a difference to be overlooked.” Similarily, Joseph Raz draws a central distinction between “regulated” and “unregulated” disputes: a dispute is “regulated,” for Raz, if “the law is clear and cannot be changed by the judicial organ.” In regulated disputes, one particular solution is required by law; the court decides the case by applying preexisting and legally binding rules that it is under a duty to apply. All other disputes are “unregulated.”
THE CONTENT OF OUR CASEBOOKS: WHY DO CASES GET LITIGATED?
Each year, first-year law students are introduced to the study of law through the case method. The minds of future lawyers are sharpened by considering the misfortune of the fellow with chest hair on his palm; the people chasing each others’ foxes through the forest; the dimwitted brothers seeking to farm the Oklahoma hardscrabble; or the individuals who, unable to make monthly installment payments on their home appliances, appeal to the U.S. Supreme Court for relief. While the claims of injustice are real, there is scant attention paid to the puzzling issue of why these individuals and organizations would give of their time and money to litigate cases to judgment and opinion, and thereby provide such a rich source of teaching material. What’s more, these valiant contributors to the education of law students seek no compensation for their efforts, demand no copyright in the product created, and claim no protection against the snickers and guffaws that inevitably accompany the repeated recitation of their misfortune.
THE NECESSITY OF REDEFINING SPOLIATION OF EVIDENCE REMEDIES IN FLORIDA
Robert D. Peltz
From its rather humble beginnings as a limited evidentiary presumption designed merely to shift the burden of proof in medical negligence actions and place the parties on an equal footing where a health care provider had failed to keep statutorily required records, the doctrine of spoliation of evidence in Florida has rapidly grown into a separate cause of action. Although experience has clearly shown the need for remedies to combat the spoliation of evidence under certain well-defined circumstances, the unchecked progression of spoliation remedies potentially threatens litigants’ constitutional rights to due process, trial by jury, and the lawful use of their property. A number of recent cases in Florida have appeared on their faces to further expand this doctrine to situations where there is no statutory, contractual, or other specific legal duty to preserve the evidence, and where the destruction or loss occurs without intent, ill will, or bad faith. Ironically, the California courts, which gave birth to the spoliation principles in the mid-1980s, have now withdrawn recognition of a separate cause of action after carefully reexamining both its necessity and its effects.
APPROACHING REFORM: THE FUTURE OF MULTIJURISDICTIONAL PRACTICE IN TODAY’S LEGAL PROFESSION
Christine R. Davis
Multijurisdictional practice is now a full-fledged reality. The legal profession has entered a time in which lawyers have access to a wealth of information through the rapid increase in technological development. For example, a Florida lawyer vacationing in Europe can pull out his Palm Pilot and conduct research for a case pending back home simply by plugging the device into his cellular phone. Another lawyer in New York can access the Internet and research just about any area of the law in any part of the world. With relative speed, he can learn how to write a will in Oregon or draft articles of incorporation in California. A lawyer can easily contact a friend or partner in another state via e-mail or telephone and obtain advice regarding the law in another state. A lawyer can now be on the other side of the country but make it to a local court in a matter of hours after preparing for her case on a laptop in the airplane.
IS LEGISLATION THE ANSWER? AN ANALYSIS OF THE PROPOSED LEGISLATION FOR BUSINESS METHOD PATENTS
Russell A. Korn
In today’s ever-changing market, institutional corporations and hot new start-up companies are all attempting to secure their interests through intellectual property protection. Companies carry extensive intellectual property portfolios consisting primarily of patents, trademarks, and copyrights. The increase in technological advances has fueled the desire for patent protection on their inventions. Furthermore, due diligence of patent portfolios is increasingly useful in mergers and acquisitions of technical and nontechnical companies. A strong patent portfolio can greatly drive up the price of a target entity.
BAD FAITH OR NO FAITH? FINDING A PLACE FOR WRONGFUL REFUSAL TO DEFEND IN FLORIDA’S BAD FAITH JURISPRUDENCE
Matthew D. Schultz
One night in September 1973, a man known to us only as “Kenny” stood in charge of Bon’s Laundry #1 in Pinellas County, Florida. Michael Hancock and a few companions showed up and began banging on the doors to the laundromat, threatening to break in and take money. Kenny chased the young men and threw sulphuric acid on Hancock during the pursuit. Roughly one month later, Hancock filed suit against Willie and Anne Thomas as owners of Bon’s Laundry #1. The Thomases’ premises liability insurer, Western World Insurance Company, reacted in a manner that is not altogether uncommon, but which has raised novel issues of Florida law that have yet to be systematically addressed: Western World refused to defend the Thomases against Michael Hancock’s suit.