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By the early 1990s, the general aviation industry teetered on the brink of death. Because many general aviation aircraft remained in service for several decades, the aircraft imposed a “long tail of liability” on their manufacturers that crippled the industry. Acknowledging the manufacturers’ burden of defending litigation for the life of an aircraft, Congress moved to cut off the long tail of liability and enacted the General Aviation Revitalization Act (GARA), which established an eighteen-year statute of repose that barred a range of product liability lawsuits against general aviation aircraft manufacturers. The Authors argue that Florida courts have disregarded GARA’s purpose (saving manufacturers from costly litigation) by prohibiting immediate appeals of orders denying dismissal based on GARA and forcing manufacturers to endure the costs of trial before they may appeal. Exploring cases with divergent outcomes on the issue, this Article asserts that these burdensome litigation costs constitute permanent, irreparable damage to the manufacturers that can only be remedied by immediate certiorari review.

This Article explores how Florida appellate courts ostensibly protect an individual’s right to choose an attorney by allowing litigants to petition for a writ of certiorari when they lose their chosen counsel to the opposition’s motion to disqualify. Examining cases from several different districts, the Author argues that Florida appellate courts merely pay lip service to the certiorari standard-claiming to adhere to the “essential requirements of law” standard-and instead review orders granting a disqualification motion with an unspoken de novo standard. This Article recommends remedying this disconnect by changing the standard from the allegedly used certiorari standard to the de novo standard available for non-final appeal under Florida Rule of Appellate Procedure 9.130. This, the Author suggests, will increase the transparency and reliability of court decisions reviewing orders that disqualify a party’s counsel and enhance the protection of an individual’s right to choose his or her attorney.

In a recent decision, the Florida Supreme Court appeared to adopt a standard for certiorari review that further limits the availability of such review, continuing a trend that began during the 1960s. Noting that Florida courts have used the same three-prong standard since at least the middle of the last century, this Article traces the evolution of the standard from 1855, when the Supreme Court addressed it for the first time, until the Court’s apparent tightening of the standard in 2012. Although the Court used rather liberal language in the wording of the standard in its 1855 decision, it nevertheless explained that certiorari relief was of a limited nature. Over the next century, however, courts largely failed to provide a coherent definition or application of the standard. This resulted in some relaxation of the standard in its application by the appellate courts. That began to change in the 1960s, when courts began to apply the standard in a way that realized its purported limiting effect. Perhaps most often used to limit review is the prong that requires “material harm incapable of remedy by on appeal.” In 2012, the Florida Supreme Court may have tightened that prong even more. The Court cited with approval a Fourth District Court of Appeal decision that required a petitioner to show “financial ruin” to fulfill the irreparable- harm prong of the standard. This Article questions the wisdom of such a harshly limiting application by pointing out that pushing controversies into post-trial appeal rather than resolving them before trial may be an uneconomical use of judicial resources and shifts an unnecessary burden onto the litigants.

This Article discusses the evolution of the standard of certiorari review in Florida’s appellate courts. Prior to 1957, the Florida Supreme Court had the power, provided by the State Constitution, to issue writs of certiorari in cases at the trial court level, essentially exercising supervisory jurisdiction over other courts. This jurisdiction, however, was not intended to authorize a second appeal; instead, it operated as an examination into the proceedings of the circuit court and whether the judgment was illegal, irregular, or “prejudicial and materially harmful” to the party seeking review.

In 1956, the Florida Legislature amended the Constitution, establishing the Florida district courts of appeal and granting both the district and circuit courts certiorari jurisdiction. The Supreme Court’s certiorari jurisdiction was further defined to require review of decisions that pass upon a question certified to be of great public importance or decisions in direct conflict with a decision of another district court of appeal or the Supreme Court on the same issue. In 1972, an additional amendment to the Florida Constitution added scenarios in which the Florida Supreme Court would have certiorari jurisdiction. In these scenarios, the Supreme Court could also review the district court of appeal’s decision for error. Finally, in 1980, Article V, Section 3, of the Florida Constitution underwent considerable revision, eliminating certiorari jurisdiction in the Supreme Court and making it only available in the district courts of appeal and the circuit courts. The certiorari jurisdiction of these courts still requires a violation of a clearly established principle of law resulting in a miscarriage of justice.

Certiorari relief is only granted if a lower court has violated a “clearly established principle of law,” understood by Florida courts to mean binding and on-target caselaw governing that lower court’s decision. This Article examines the clearly-established-law requirement, finding that it obstructs Florida appellate courts from developing caselaw for issues of first impression and those issues first decided outside the reviewing district. This requirement often results in appellate courts denying relief without analyzing cases’ merits and being bound to other districts’ precedent.

This Article discusses existing responses to the requirement, examining how Florida courts have avoided it by looking to constitutional provisions, statutes, and rules; expanding upon current caselaw; and certifying questions to higher courts. The Article then proposes an alternate solution stemming from prospective adjudication—”sunbursting”—which allows courts to rule on legal issues without applying those rules to parties. Under this approach, courts would both maintain the clearly-established-law requirement and provide for caselaw development in a two-step process: (1) determine whether a lower court violated established law (granting or denying relief); and (2) analyze and rule on each issue raised.

Under Florida law, the circuit courts and the district courts of appeal engage in a limited judicial review of state agency decisions, particularly of local zoning boards, because the courts defer to an agency’s expertise. There is, however, substantial confusion surrounding the scope of the limited review of local zoning board decisions, which makes it difficult-for courts to determine if a state agency has abused its discretion, made erroneous findings of fact, or misapplied the law. Under the current system of certiorari review, a single judge in the circuit court may have too much discretion to review state agency decisions, while a district court of appeal may have too little discretion to determine if there is an error, thus potentially depriving property owners of their rights or interfering with the exercise of legitimate state police power. The Authors urge that certiorari review does not give either property owners or the government, both of which have significant rights at stake, an appeal that would satisfy their constitutional right to such review. The Authors further suggest that society should revisit the issue of judicial review of state agency decisions to afford the parties their constitutional right to review.

Though the remedy of certiorari has existed for centuries in the United States and the United Kingdom, the French system is fairly modern. The formal certiorari process was not even available in France until the 2008 constitutional reforms, which did not go into effect until 2010. In this Article, the Authors trace the development of the remedy of certiorari in the United States and France in an effort to draw conclusions on how the remedy and its use are similar and different under the two systems.

While this Article points out many fundamental differences that still exist between the two systems, it nevertheless proposes that the 2008 constitutional reforms in France have brought the French certiorari model closer to the United States’ model. As a result of these comparisons, this Article provides valuable insight into the development of the remedy of certiorari in both the United States and France, as well as an examination of the similarities and differences between the two systems.

The Supreme Court recently reviewed the Ninth Circuit’s decision in United States v. Alvarez and held the Stolen Valor Act (SVA) to be facially unconstitutional. There was no intent requirement or harm requirement under the plain language of the statute, and therefore the SVA made words, and words alone, criminal. This Article argues that the Supreme Court properly overturned the SVA because the statute violated fundamental First Amendment values and significantly departed from previous, appropriate legislation regulating truth and falsity. Historically, there have been limited categories of speech that are exempt from First Amendment protection, but false speech is not one of them. The plurality in Alvarez noted the sheer breadth of the SVA to cover all false statements made at any time, in any place, to any person. The SVA was subject to strict scrutiny, and ultimately, the plurality found that the government failed to carry its burden to prove a causal link between a negative public perception of military award and lies about military valor. This Article also discusses three examples of the Supreme Court’s willingness to strike down other laws that serve an admirable purpose but appear to threaten First Amendment rights. In conclusion, this Article proposes both public and private alternatives to the SVA.