Charles W. Ehrhardt
I am pleased to write this tribute to Professor Jarret Oeltjen, who has retired from the faculty of the Florida State University College of Law. Since Jarret came to Tallahassee thirty-three years ago, we have been friends and colleagues. He has been a great teacher and scholar.
CONTEXTUALIST ANSWERS TO SKEPTICISM, AND WHAT A LAWYER CANNOT KNOW
William A. Edmundson
These two passages seem to show Dr. Johnson at war with himself. He tells us on the one hand that we all know what we think we know about rocks and tables and chairs—the philosopher’s sophistries to the contrary notwithstanding. On the other hand, he tells us that lawyers do not know what we all know they know—no matter how plainly the truth appears to them. I argue that Johnson was right on both counts.
A SKEPTICAL ANSWER TO EDMUNDSON’S CONTEXTUALISM: WHAT WE KNOW WE LAWYERS KNOW
How can lawyers help criminal defendants they know to be guilty avoid conviction and punishment? In Contextualist Answers to Skepticism, and What A Lawyer Cannot Know, Professor William Edmundson answers that nagging question, a question asked not only at cocktail parties, but also in law faculty lounges and legal ethics classes. Prof. Edmundson’s answer is clever, even brilliant, and appealing, almost seductive. It is also, I am afraid, fundamentally flawed. But it is flawed in deeply interesting and revealing ways. In Part I of this Comment, I try to show why both Prof. Edmundson’s question and his answer are more important than he himself suggests. In Part II, I try, at greater length, to isolate what I believe to be his answer’s fundamental flaw. Finally, in Part III, I suggest why Prof. Edmundson’s answer, flawed though I think it is, may mark an important realization in legal ethics scholarship, underscoring the need for significant new work in several related directions.
COMPANY GOVERNANCE UNDER FLORIDA’S LIMITED LIABILITY COMPANY ACT
Barbara Ann Banoff
Lawyers and accountants, the transactional engineers of American business, are accustomed to thinking of different forms of business organization as planning opportunities. If they are savvy, they also see them as marketing opportunities. Clients may be persuaded to trade in their old forms for a new and improved model. These sophisticated form entrepreneurs see what state legislatures have always known but rarely articulated: organizational forms are products that trade in a market. The law is for sale, not that there’s anything wrong with that.
“THE VOICE OF ADJURATION”: THE SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS FIFTY YEARS AFTER UNITED STATES EX REL. TOUHY V. RAGEN
Jack Defendant is being prosecuted in state court. The case against him was made by Detectives Smith and Jones. The prosecutor calls Smith to the stand, elicits his testimony, then rests without calling Jones. This tactic nourishes a suspicion that has been growing in the mind of Jack’s defense counsel that there is something fishy about the case against Jack. Perhaps, if offered just the right questions, Jones might contradict or at least undercut Smith’s testimony.
A SENSIBLE ALTERNATIVE TO REVOKING THE BOY SCOUTS’ TAX EXEMPTION
Michael J. Barry
Most members were outraged when their colleagues stood on the floor of the United States House of Representatives to support an act that would repeal the Boy Scouts of America’s (BSA) congressional charter. Eleven weeks earlier the BSA had won a landmark victory before the Supreme Court in Boy Scouts of America v. Dale, which arguably recognized a constitutional right to discriminate against homosexuals. Proponents of the repeal measure wanted Congress to send its own message to the BSA, and the rest of the country, that such discrimination was unacceptable.
D’OENCH LIVES, BUT FOR HOW LONG?: THE ELEVENTH CIRCUIT BREATHES LIFE INTO AN AILING BANKING DOCTRINE
For sixty years, the federal common law D’Oench doctrine has protected the Federal Deposit Insurance Corporation (FDIC) from the costs and uncertainties of having to honor nonwritten agreements made by banks prior to their failure. In its original form, the doctrine prevented banks and borrowers from making secret side agreements to their loans for the purpose of deceiving bank examiners like the FDIC and provided the FDIC with an important tool with which to protect the integrity of the country’s banking system. In 1950, Congress included a provision in its Federal Deposit Insurance Act (FDIA) that was analogous to, but did not abrogate, the common law D’Oench doctrine. Together, the common law doctrine and its statutory counterpart, found at 12 U.S.C. § 1823(e), allowed the FDIC to rely on the records of insolvent banks and to evaluate those banks’ assets and liabilities with greater accuracy. Working in tandem, they helped the FDIC boost the public’s confidence in the banking industry.