By Jeffrey T. Donner, Esq.

June 3, 2026

I. Introduction: The Part the Profession Keeps Pretending Is Complicated

The modern legal system keeps acting as if basic principles are no longer enough.

Courts decide actual disputes. Legislatures make policy. Lawyers verify their own filings. Contracts are supposed to mean something. Property rights are supposed to mean something. Common-law doctrines have boundaries. A lawyer’s signature on a court filing is supposed to carry professional responsibility.

None of that is advanced legal theory. It is basic law school.

Yet much of the profession now behaves as if every failure of judgment requires another rule, another certification, another presuit hurdle, another administrative order, another compliance ritual, or another expansion of some old common-law doctrine beyond recognition.

Instead of enforcing first principles, the system layers procedure on top of procedure. Instead of trusting lawyers to meet duties they already have, it invents another certification. Instead of preserving access to courts, it builds presuit obstacle courses. Instead of respecting common-law limits, it lets old doctrines get stretched into policy weapons. Instead of admitting that much of modern government is administrative control wearing constitutional clothing, it gives graduation-speech lectures about freedom, opportunity, contract, and justice.

That is not the rule of law.

That is legal theater.

And it needs to be said plainly.

II. Courts Decide Cases and Controversies. They Are Not Roving Policy Commissions.

The first principle is simple: courts decide actual disputes between actual parties.

That is not a technicality. That is constitutional structure.

At the federal level, Article III limits the judicial power to “Cases” and “Controversies.” That limitation exists because courts are not legislatures. Courts do not issue advisory opinions. Courts do not regulate society generally. Courts do not decide abstract policy questions because a plaintiff’s lawyer has found a dramatic way to plead them. Courts decide concrete disputes involving injury, causation, redressability, standing, jurisdiction, evidence, and law.

Florida’s constitutional structure is not identical to Article III, but the same separation-of-powers principle applies. Article II, section 3 of the Florida Constitution separates legislative, executive, and judicial power. Courts are not supposed to exercise legislative power merely because a case is emotionally compelling, politically fashionable, or socially important.

Yet modern litigation increasingly invites courts to become policy bodies.

The pattern is familiar. A plaintiff identifies a social problem. The legislature has not addressed it, or has not addressed it aggressively enough. So the plaintiff repackages the issue as a tort, a nuisance, an unfair practice, or a broad equitable claim and asks a judge to regulate conduct on a statewide or national scale.

That is not ordinary adjudication.

That is government by lawsuit.

A lawsuit is supposed to resolve a legal dispute. It is not supposed to become an unelected regulatory program.

III. Public Nuisance Is Not a Legal Theory for Every Public Problem

Public nuisance is one of the clearest examples of doctrinal abuse.

Historically, public nuisance addressed concrete interference with public rights: obstruction of public roads or waterways, pollution, dangerous property conditions, noxious uses of land, public health hazards, and similar wrongs affecting rights held in common by the public.

It was not a universal theory for “this product has social costs,” “this industry is unpopular,” “this business model has downstream consequences,” or “this issue affects many people.”

The common law develops, but it is not infinitely elastic. A doctrine with boundaries is law. A doctrine without boundaries is power.

That distinction matters. If public nuisance can be stretched to cover any widespread social harm, then courts become substitute legislatures. Plaintiffs can bypass the elected branches, select sympathetic defendants, frame a broad social issue as a common-law tort, and ask judges to impose policy remedies that legislatures never enacted.

That is not the common law.

That is a policy project dressed up in common-law vocabulary.

Courts have recognized this danger. In City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099 (Ill. 2004), the Illinois Supreme Court rejected an attempt to use public nuisance law against firearm manufacturers and distributors for downstream criminal misuse of guns. In State ex rel. Hunter v. Johnson & Johnson, 499 P.3d 719 (Okla. 2021), the Oklahoma Supreme Court rejected an attempt to use public nuisance law against opioid manufacturers in a way that would have dramatically expanded the doctrine.

Those cases stand for a basic proposition: public nuisance is not a roving license for courts to regulate social problems.

A smokestack dumping pollutants onto neighboring land or into public waters belongs in nuisance analysis. An obstruction of a public road belongs there. A dangerous land use contaminating a community may belong there.

But “this is bad for society” is not enough.

If everything becomes nuisance, nuisance means nothing.

IV. The Constitution Does Not Expand Judicial Power Because the Issue Is Important

The usual excuse for overreach is urgency.

The issue is important. The public is upset. The legislature is slow. The agencies are ineffective. The defendants are unpopular. The harm is widespread. Therefore, courts should act.

That is exactly backward.

The more important the issue, the more important it is to respect constitutional structure. Separation of powers is not a luxury for calm times. It is a safeguard for hard times.

If courts can become legislatures whenever a plaintiff pleads enough urgency, then constitutional structure collapses precisely when it is most needed.

This is not formalism for its own sake. It is the difference between law and discretionary power.

Courts are powerful because they are limited. They decide cases. They apply law. They adjudicate rights. They do not become general-purpose problem-solving agencies merely because a lawyer wants them to.

A legal system that forgets that point does not become more compassionate.

It becomes less lawful.

V. The Emergency-Government Habit Did Not End

The emergency-governance period revealed how quickly American institutions can become comfortable with fear-based control: orders, mandates, shifting guidance, administrative pressure, public messaging, compliance rituals, and institutional deference.

The more important point is that the habit did not disappear.

Government actors learned that emergencies justify commands. Professional regulators learned that anxiety can become procedure. Courts and administrative bodies learned that temporary restrictions can normalize new expectations. Citizens and lawyers learned to comply first and analyze later.

That should worry anyone who still cares about constitutional government.

A free society cannot treat every perceived crisis as permission for official control. Rights are not supposed to function only when the government is calm. Separation of powers is not supposed to yield whenever officials become afraid. Judicial restraint is not supposed to disappear whenever a case is politically or emotionally charged.

The legal profession should have been a brake on that mentality.

Too often, it became a compliance department.

VI. Freedom of Contract and Private Property Are Supposed to Mean Something

Students and young adults hear speeches about freedom, opportunity, responsibility, private enterprise, property rights, and the American dream.

Then they enter adulthood and discover the footnotes.

Freedom of contract exists, but it is hemmed in by statutes, regulations, public-policy exceptions, licensing schemes, consumer-protection rules, employment laws, insurance regulations, banking laws, disclosure mandates, unconscionability doctrines, association rules, and administrative enforcement systems.

Private property exists, but it is burdened by zoning, code enforcement, land-use restrictions, permitting regimes, environmental regulation, tax liens, eminent domain, association covenants, development controls, and regulatory conditions.

Some of that law may be valid. Some of it may be necessary. Some of it may even be wise.

But the slogans are not the whole truth.

We do not live in a simple world of robust private property and pure freedom of contract. We live in a heavily regulated administrative state with remaining zones of contract and property rights. Sometimes those rights are respected. Sometimes they are eroded. Sometimes they are praised in speeches while being narrowed in practice.

Lawyers should be honest about that.

The old fights over economic liberty did not disappear because the questions became unimportant. They disappeared because courts largely retreated from meaningful review of economic regulation after the New Deal era. Lochner v. New York, 198 U.S. 45 (1905), became the symbol of a rejected constitutional approach. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), marked the turn. Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934), showed how even the Contracts Clause could bend under emergency reasoning.

One may accept modern doctrine and still insist on intellectual honesty.

If freedom of contract and private property are constantly qualified, regulated, conditioned, and subordinated, then we should not pretend they operate with the force they have in civic speeches.

VII. Graduation Speeches and the Real World

Graduation speeches are polished, optimistic, and full of familiar promises: opportunity, freedom, responsibility, leadership, service, and the bright future waiting for the graduates.

Some of that optimism is appropriate. Young people should be encouraged. Achievement should be celebrated. Families should be proud.

But the speeches are incomplete.

Graduates are told merit matters, but they will discover networks matter. They are told institutions are competent, but they will discover many are not. They are told the system is fair, but they will discover that procedure often matters more than merits. They are told we have freedom of contract and private property, but they will discover the administrative state. They are told courts exist for justice, but they will discover cost barriers, presuit traps, docket pressure, procedural gamesmanship, and institutional delay.

That does not mean the speeches are entirely false.

It means they are not the whole story.

The legal profession should be one of the few places where adults speak honestly about that gap. Lawyers deal in facts, rights, obligations, burdens, remedies, risk, and proof. Lawyers should not confuse civic optimism with legal reality.

The law is not supposed to be a motivational seminar.

It is supposed to be a system for resolving disputes according to rules, evidence, and reason.

VIII. Florida’s Medical-Malpractice Presuit System Is a Procedural Barrier Masquerading as Reform

Florida’s medical-malpractice presuit system is another example of process replacing rights.

The official story sounds reasonable. Medical-malpractice claims are serious. Defendants should be protected from frivolous suits. Plaintiffs should investigate before filing. Experts should be involved. Early evaluation should encourage settlement.

In practice, the system often functions as a barrier to court access.

It requires an injured person to obtain expert corroboration before filing suit. It front-loads expense before ordinary discovery. It advantages institutional defendants and repeat players. It disadvantages ordinary injured patients, solo lawyers, and smaller firms without immediate access to expensive expert networks.

Article I, section 21 of the Florida Constitution says courts “shall be open to every person for redress of any injury.” That promise should mean something. In Kluger v. White, 281 So. 2d 1 (Fla. 1973), the Florida Supreme Court recognized that the Legislature cannot abolish a common-law right of access without providing a reasonable alternative or showing overpowering public necessity and no alternative method.

Florida’s medical-malpractice presuit scheme has survived major constitutional challenges, including in University of Miami v. Echarte, 618 So. 2d 189 (Fla. 1993). But survival under existing precedent does not make the system wise, fair, or consistent with the deeper constitutional promise of meaningful access.

The practical contradiction is obvious. A plaintiff may need expert support before filing suit, but may need discovery to obtain the facts necessary to secure expert support. Treating physicians may be unwilling to accuse another physician of malpractice. Retained experts are expensive. Medical records may be technical, incomplete, or difficult to interpret. The injured patient may lack money, mobility, insurance, time, or institutional knowledge.

So the courthouse doors are technically open.

But the path to the courthouse is guarded by cost, procedure, expert access, and traps for the unwary.

That is not real access.

That is conditional access for people who can afford the key.

IX. The New Florida Citation-Certification Rule Shows the Same Bureaucratic Instinct

Florida has now amended Rule 2.515(d)(2) to require the signer of a court filing to represent that the legal authorities identified in the filing exist and are accurately cited. The amendment was adopted in response to concerns about generative AI and fabricated legal authorities. It also authorizes sanctions for violations after notice and an opportunity to be heard.

Of course lawyers should verify their citations.

Of course cited cases should exist.

Of course a lawyer should not file fake authorities.

Of course a lawyer should not rely blindly on ChatGPT, Westlaw, Lexis, Google Scholar, a law clerk, a paralegal, an associate, or anyone else without checking the work.

But that was already true.

A lawyer’s signature on a filing was already supposed to mean the lawyer read it, had good grounds to support it, and was taking professional responsibility for it. Florida lawyers already had duties of competence, candor, diligence, supervision, and honesty. Courts already had inherent authority. Sanctions already existed. Bar discipline already existed. Motions to strike already existed. Fee awards already existed.

The problem with fake citations is not that Florida lacked enough rules.

The problem is that some lawyers are incompetent, careless, dishonest, or too lazy to verify their own work.

A statewide rule may be preferable to a patchwork of local administrative orders. Uniformity is better than circuit-by-circuit improvisation. But that does not make the rule a deep solution. It is still another example of the same bureaucratic instinct: when some lawyers fail to do what they were already required to do, impose another formal representation on everyone.

Competent lawyers now have another certification. Incompetent lawyers remain incompetent. Dishonest lawyers remain dishonest. The procedural machinery expands, and the underlying professional problem remains.

X. A Lawyer’s Signature Already Means: I Checked This

This should not require a new rule.

When a lawyer signs a pleading, motion, memorandum, or brief, the lawyer is taking responsibility for it. That responsibility includes the facts, the law, the citations, the arguments, and the purpose of the filing.

The signature is not decorative. It is not a formatting convention. It is not a ceremonial flourish.

It is the lawyer’s professional representation to the court.

If a lawyer cites a fake case, the problem is not “AI.” AI may have generated the fake citation, but AI did not file the motion. AI did not sign the pleading. AI did not submit the document through the e-filing portal. AI did not owe duties of competence and candor to the tribunal.

The lawyer did.

Calling this an AI problem risks missing the real issue. This is a competence problem. A supervision problem. A professional-responsibility problem. A legal-education problem. A bar-admissions problem.

If a lawyer cannot verify whether a case exists before filing it in court, the lawyer does not need another certification requirement.

The lawyer needs remedial training, sanctions, discipline, or a different profession.

XI. The Bar Should Be Harder to Pass

The legal profession has spent years confusing access to the profession with competence within the profession.

Those are not the same thing.

The public does not benefit from a larger number of lawyers who cannot research, write, reason, verify authority, understand separation of powers, distinguish holding from dicta, identify jurisdictional problems, analyze statutory text, or recognize when a common-law doctrine has escaped its boundaries.

A law license is supposed to mean something. It should signal minimum competence to represent clients, handle money, file papers, make arguments, advise people in crisis, and deal honestly with courts.

If too many lawyers cannot do those things, the answer is not more certification rituals.

The answer is higher standards.

The bar exam should be harder, not easier. Legal writing should be graded seriously. Legal research should require actual verification. Civil procedure should be taught as the architecture of judicial power, not as a short-term memorization exercise. Constitutional law should be taught as structure, not merely as outcomes. Common-law subjects should be taught as bounded systems of reasoning, not as malleable vocabulary for policy goals.

There are too many lawyers who entered the profession by default. They were verbal enough to survive law school, uninterested in math, business, science, engineering, or other technical disciplines, and drawn to law as a credential rather than as a craft. That does not describe everyone. It describes enough people to matter.

A profession that lowers standards should not be surprised when it has to compensate with more rules.

If the gatekeeping function fails, bureaucracy grows in its place.

XII. More Rules Are Not the Same Thing as Better Law

Modern lawyers are drowning in rules.

Rules of civil procedure. Rules of judicial administration. Rules of professional conduct. Local rules. Administrative orders. Standing orders. Division procedures. E-filing requirements. Proposed-order formatting requirements. Case-management orders. Meet-and-confer requirements. Certification requirements. Safe-harbor requirements. Presuit requirements. Disclosure requirements. Now AI and citation-certification requirements.

Some rules are necessary. Procedure matters. Deadlines matter. Notice matters. Fairness matters. Courts need order.

But procedure should serve adjudication. It should not replace adjudication.

When lawyers spend more time satisfying procedural rituals than presenting merits, something is wrong. When claims can be lost before meaningful discovery because of presuit technicalities, something is wrong. When courts respond to bad lawyering by imposing yet another certification on good lawyers, something is wrong. When administrative compliance becomes more important than legal reasoning, something is wrong.

Law is not supposed to be a maze designed by anxious administrators.

Law is supposed to be a system for resolving disputes according to rights, evidence, rules, and reason.

XIII. This Is Not Negativity. It Is Legal Reality.

There is an easy way to dismiss all of this: call it negativity.

That avoids the argument.

If a lawyer says medical-malpractice presuit blocks meaningful access to courts, call him negative. If he says public nuisance is being abused, call him rigid. If he says a new certification rule duplicates duties lawyers already had, call him resistant to reform. If he says freedom of contract and private property are constantly eroded in practice, call him extreme. If he says the Bar should be harder to pass, call him arrogant.

That is evasion.

The issue is not tone. The issue is whether the critique is correct.

Are courts supposed to decide actual disputes rather than regulate society through broad lawsuits? Yes.

Does public nuisance have limits? Yes.

Does Florida’s Constitution protect access to courts? Yes.

Does the medical-malpractice presuit system impose serious practical barriers before suit? Yes.

Did lawyers already have duties to verify citations before the new Rule 2.515 amendment? Yes.

Does a lawyer’s signature already carry professional responsibility? Yes.

Does the profession have a competence problem if lawyers are filing fake cases? Yes.

Does modern government often respond to institutional failure by creating more procedures instead of enforcing existing principles? Yes.

Those are not emotional points.

They are legal points.

XIV. What Should Be Done

First, courts should enforce doctrinal boundaries. Public nuisance should not become a universal regulatory cause of action.

Second, courts should take separation of powers seriously. The fact that an issue is important does not give the judiciary authority to govern it.

Third, Florida should reexamine medical-malpractice presuit requirements in light of actual access to justice. A system that theoretically permits suit but practically blocks ordinary claimants from obtaining expert support before discovery is not meaningful access.

Fourth, courts should sanction lawyers who file fake cases or false authorities, but the profession should not pretend another certification solves the problem. The real issue is competence.

Fifth, the Bar should raise standards. Admission should be harder. Legal writing and research should be treated as core professional skills. Lawyers who cannot verify authority should not be filing papers in court.

Sixth, procedural reform should reduce clutter, not multiply it. If a new rule merely restates an existing duty, courts should ask whether existing duties should simply be enforced.

Seventh, lawyers should stop applauding every new compliance ritual as progress. Sometimes another form is not reform. Sometimes it is evidence that the system has forgotten how to enforce the rules it already had.

XV. Conclusion: Someone Has to Say It

The law does not need more slogans. It does not need more graduation-speech optimism. It does not need more bureaucratic rituals pretending to be reform. It does not need more common-law doctrines stretched beyond recognition to achieve policy outcomes. It does not need more presuit traps that make constitutional rights expensive to exercise. It does not need more certifications reminding lawyers to do what lawyers were already obligated to do.

It needs competence.

It needs courage.

It needs judgment.

It needs judges who understand limits.

It needs lawyers who understand first principles.

It needs a Bar that treats admission as serious gatekeeping.

It needs a profession willing to say that not every problem belongs in court, not every emergency justifies government control, not every regulation is harmless, not every procedural hoop is justice, and not every person with a law license is actually capable of practicing law at the level the public deserves.

Maybe that sounds harsh.

Fine.

A legal culture that needs a new statewide rule to remind lawyers that cited cases should exist has not earned gentle criticism.