Digital Commons Network^™

The Effect Of Risk On Legal Valuation, Robert J. Rhee

UF Law Faculty Publications

From a financial economic perspective, the governing condition of a meritorious civil action is the uncertainty of outcome. Expectation and outcome deviate, and the spread is the measure of uncertainty (or variance). During litigation each party has an option to settle or select trial. The decision standard can be seen as an option strike price and a finding of liability as an "in-the-money" call option. This apparent optionality suggests the application of an option pricing model to legal valuation, and a small but growing body of scholarship endorses this concept. However, option theory is not the only concept. Under an …

Origins And Evolution Of Section 751(B), Karen C. Burke

UF Law Faculty Publications

Section 751(b), reputedly one of the most widely ignored provisions of Subchapter K of the Internal Revenue Code, reserves its most daunting complexity for nonprorata current distributions of property other than cash. While partnership tax has been revolutionized by increasingly sophisticated capital-accounting rules, the 1956 regulations implementing section 751(b) have never been updated to reflect the modern concept of revaluations and section 704(c) special allocations. Recently, the Treasury Department has requested comments concerning alternative approaches that would simplify and rationalize accounting for shifts of ordinary income and capital gain among partners.

This article considers proposals to replace the imputed exchange …

Taxing Hot Asset Shifts, Karen C. Burke

UF Law Faculty Publications

The Article comments on I.R.S. Notice 2006-14 which proposes to simplify and rationalize the collapsible partnership rules of section 751(b). It concludes that the proposed hot asset sale approach represents much needed improvement of section 751(b) but suggests that the Treasury should also consider more fundamental reform that would treat a nonprorata current distribution as a partial liquidation. The Article also explores the relationship between sections 734(b) and 751(b), focusing on the 1954 ALI proposals and Professor Andrews' more recent proposals concerning hot asset distributions and mandatory basis adjustments. The Article is an outgrowth of the author's work as a …

Capital Offense: The Sec's Continuing Failure To Address Small Business Financing Concerns, Stuart R. Cohn, Gregory C. Yadley

UF Law Faculty Publications

Despite years of criticism from small business advocates, the Securities and Exchange Commission has made little effort to ameliorate the severe burdens on small companies seeking to raise capital in compliance with the Securities Act of 1933 and SEC regulations. Substantial SEC attention has been given in recent years to improving the capacity of large, publicly-held companies to market securities, but smaller companies have suffered from less-than-benign neglect. Responding to this concern, the SEC recently adopted several proposals, and has others pending, aimed at small business financing. These proposals and adoptions, while modestly helpful, fall far short of addressing the …

When Lawyers Move Their Lips: Attorney Truthfulness In Mediation And A Modest Proposal, Donald C. Peters

UF Law Faculty Publications

This article examines whether the punch line that you can tell when lawyers are lying by confirming that their lips are moving applies to their conduct when negotiating in mediations. General surveys of lawyer honesty suggest that this perception probably does apply to the way lawyers negotiate in mediations. Only 20% of people surveyed in a 1993 American Bar Association poll described the legal profession as honest, and that number fell to 14% in a 1998 Gallup poll. However, research demonstrates a connection between honest negotiating and perceived effectiveness. A study of 5,000 Denver and Phoenix lawyers found that honest, …

Should Or Must?: Nature Of The Obligation Of States To Use Trade Instruments For The Advancement Of Environmental, Labour, And Other Human Rights, Stephen J. Powell

UF Law Faculty Publications

This article examines whether customs, treaties, and historical facts have caused the ethical human rights obligations of economically powerful states to assume a legal quality. The author argues that the legal quality of these obligations may arise from the global harm principle of international law and human rights obligations found in treaties. As a consequence, states may be held accountable for the human rights violations of transnational corporations. Further, the author examines the possibility of pursuing claims under the U.S. Alien Tort Statute for torts committed in violation of international treaties as another avenue for enforcing human rights obligations.

Regulating Evolution For Sale: An Evolutionary Biology Model For Regulating The Unnatural Selection Of Genetically Modified Organisms, Mary Jane Angelo

UF Law Faculty Publications

In recent years, there has been an explosion in the genetic manipulation of living organisms to create commercial products. This genetic manipulation has, in effect, been a directed change in the evolutionary process for the purpose of profit. This deliberate alteration of the path of evolution has brought with it a panoply of novel environmental, human health, and economic risks that could not have been foreseen when U.S. environmental and health protection laws evolved. U.S. environmental law has not evolved to keep pace with these dramatic changes in the evolution of our biological systems. Thus, completely new approaches are needed …

Coolhunting The Law, Mark Fenster

UF Law Faculty Publications

In this essay, I want to use the image of the "coolhunter" to consider what Victor Fleischer has called the "branding moments" in a corporation's legal life -- specifically, those events, most notably in initial public offerings, in which a company, with the assistance of counsel, uses its legal infrastructure and corporate transactions to further its brand. This essay is a small effort to use Fleischer's work to think through these issues by focusing, in turn, on branding, on the various audiences for these branding moments, on the relationship between the brand and transparency norms, and, finally, on the role …

Recent Developments In Federal Income Taxation: The Year 2006, Ira B. Shepard, Martin J. Mcmahon Jr.

UF Law Faculty Publications

This recent developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during 2006 - and sometimes a little farther back in time if we find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed except to …

María Lugone's Work As A Human Rights Idea(L), Berta E. Hernández-Truyol, Mariana Ribeiro

UF Law Faculty Publications

The work of Maria Lugones can be utilized to focus on the same ideas of human reality articulated in the human rights framework. She engages the complexity of humans -- the indivisibility of their identity components -- through her concepts of hybridity/multidimensionality. Similarly, Lugones captures the human need for self-determination -- a right embedded in the human rights framework -- in her work on autonomy, agency, and self-care. Finally, her quest for an antisubordination ideal, like the human rights mandate for equality and nondiscrimination, comes to life in her call for the recognition of and respect for the equality of …

Taxing Risk: An Approach To Variable Insurance Reform, Charlene Luke

UF Law Faculty Publications

Variable life insurance and annuity contracts are susceptible to being marketed and sold to taxpayers for whom such contracts are unsuitable and to being used in wraparound insurance shelters. As a method of addressing these problems, I propose current taxation for the risky returns on these contracts but continued deferral for a deemed, risk-free return amount. The increased transparency resulting from the forced separate tax accounting of contract components should improve consumers' ability to receive adequate suitability evaluations and may also lead to lower fees. Current taxation of risk-related returns removes an apparently key shelter incentive and should make it …

Protecting Students From Abuse: Public School District Liability For Student Sexual Abuse Under State Child Abuse Reporting Laws, Jason P. Nance, Philip T.K. Daniel

UF Law Faculty Publications

Virtually all courts recognize that a child abuse reporting statute creates a duty to children, the breach of which is the basis of a civil suit for damages. Normally, courts recognize a duty only to the minor child about whom school officials have received the abuse reports. In 2004, the Supreme Court of Ohio extended this duty to third party student victims. Thus, causes of action may now be brought against school districts when a school employee abuses one student, school officials fail to report the abuse, and the same employee abuses a different student. Public school students who are …

Eleven Big Ideas About Conflict: A Superficial Guide For The Thoughtful Journalist, Leonard L. Riskin

UF Law Faculty Publications

When Professor Richard Reuben asked me to speak about the most basic ideas in conflict resolution to a group that included renowned journalists and journalism scholars, I balked. Surely these notions would seem too obvious, mundane, or superficial. But Richard - a practicing journalist for many years as well as an expert on conflict - assured me that the audience would find most of them surprising and useful. I hope he is correct.

I plan to present eleven ideas from the dispute resolution literature that I find particularly helpful in my work and life and which I think any journalist …

Public Law And Private Process: Toward An Organizational Justice Model Of Equal Employment Quality For Caregiver, Rachel Arnow-Richman

UF Law Faculty Publications

This article considers the relationship between prescriptive law and voluntary employer behavior in redressing the structural exclusion of working caregivers. In the last decade, several courts interpreting the Americans with Disabilities Act have held that employers are statutorily required to engage in an interactive process with workers to identify ways of accommodating their disabilities. In so doing, they have created procedural rights for workers that are distinguishable from and supplemental to the substantive right to reasonable accommodation afforded by the statute. This move resonates with developments in Title VII jurisprudence, such as the creation of an affirmative defense to harassment …

Cubewrap Contracts: The Rise Of Delayed Term, Standard Form Employment Agreements, Rachel Arnow-Richman

UF Law Faculty Publications

Modern companies increasingly use standard form agreements, such as arbitration and non-compete agreements, to “contractualize” discrete aspects of their workers’ obligations. Frequently such agreements provided to the worker after an initial oral agreement of employment has been reached, what the article refers to as “cubewrap” contracting practices. Courts and scholars have yet to develop a consistent contractual theory of the enforceability of these documents. In contrast, consumer contracts have been standardized for decades, and the problem of “terms in the box” contracts, in which key terms are similarly delayed, has been extensively debated. This article draws insights from the “terms …

A Tribute To Chief Justice James R. Zazzali: More Than A 'Caretaker', Gregory L. Acquaviva, Jonathan L. Marshfield, David Stauss

UF Law Faculty Publications

Chief Justice Zazzali's career reveals a dedication to public service and an unyielding sympathy for the disadvantaged. Accordingly, this Tribute examines his impact on New Jersey civil law and seeks to honor both the man and his jurisprudence. Although his tenure on the Supreme Court of New Jersey lasted only seven years, and his time as Chief Justice only nine months, his impact was meaningful. His clear and accessible opinions consistently protected the state's children from myriad harms including negligent educators, harassing classmates, and tortfeasing businesses. In the area of tort law, Chief Justice Zazzali was willing to incrementally expand …

Introducing A Takedown For Trade Secrets On The Internet, Elizabeth A. Rowe

UF Law Faculty Publications

This Article explores, for the first time, an existing void in trade-secret law. When a trade-secret owner discovers that its trade secrets have been posted on the Internet, there is currently no legislative mechanism by which the owner can request that the information be taken down. The only remedy to effectuate removal of the material is to obtain a court order, usually either a temporary restraining order or a preliminary injunction. When a trade secret appears on the Internet, the owner often loses the ability to continue to claim it as a trade secret and to prevent others from using …

Monopolists Without Borders: The Institutional Challenge Of International Antitrust In A Global Gilded Age, D. Daniel Sokol

UF Law Faculty Publications

Antitrust has entered a gilded age of increased international domestic legislatures, courts, and agencies, and the market as an institution. Existing institutions each have limitations in their ability to address any of the issues in international antitrust exclusively. This Article argues that the ICN is the institution best suited to address these issues. This approach may assist to identify other regulatory areas in which an ICN modeled "soft law" transnational institutional choice may prove to be the most effective way to address international issues.

Authorship, Audiences, And Anonymous Speech, Lyrissa Barnett Lidsky, Thomas F. Cotter

UF Law Faculty Publications

This Article aims to assist lawmakers and courts to find the proper balance between the right to speak without disclosing one's true identity and the rights of those injured by anonymous speech. To this end, we present both a positive and a normative analysis of anonymous speech. In the positive analysis, we examine the private costs and benefits that speakers encounter when deciding whether to publish with or without attribution; among these costs and benefits are the potentially differing responses of audiences to attributed and nonattributed speech. For example, speakers may feel less vulnerable to retaliation when they speak anonymously, …

Bankruptcy Fire Sales, Lynn M. Lopucki, Joseph W. Doherty

UF Law Faculty Publications

For more than two decades, scholars working from an economic perspective have criticized the bankruptcy reorganization process and sought to replace it with market mechanisms. In 2002, Professors Douglas G. Baird and Robert K. Rasmussen asserted in The End of Bankruptcy, an article published in the Stanford Law Review, that improvements in the market for large, public companies had rendered reorganization obsolete. Going concern value could be captured through sale. This article reports the results of an empirical study comparing the recoveries in bankruptcy sales of large public companies in the period 2000-2004 with the recoveries in bankruptcy reorganizations during …

The Spearing Tool Filing System Disaster, Lynn M. Lopucki

UF Law Faculty Publications

Debtor name errors have been a substantial and persistent problem for filers and searchers in the Uniform Commercial Code Article 9 filing system. Filers make errors in spelling, punctuation, and spacing, use trade names, and include extraneous words. The law prior to 2001 excused such errors if they were minor and not seriously misleading. That put the burden on searchers to conduct reasonable diligent searches to find erroneous filings. The effect was to render all searches problematic and costly. The drafters of revised Article 9 conceived a brilliant solution to the problem with respect to corporate debtors (registered entities). First, …

An Administrative "Death Sentence" For Asylum Seekers: Deprivation Of Due Process Under 8 U.S.C. § 1158(D)(6)'S Frivolousness Standard, E. Lea Johnston

UF Law Faculty Publications

In 1996, Congress amended the Immigration and Nationality Act by providing a new sanction for asylum seekers: if an immigration judge makes a finding that a noncitizen has knowingly filed a fraudulent asylum application, then that person is permanently ineligible for immigration benefits. For eleven years, immigration judges, the Board of Immigration Appeals, and federal courts have imposed and reviewed this sanction without specifying a burden of proof. When it did act to fill the statutory gap in April 2007, the Board held that the government must prove the elements of the statute by a preponderance of the evidence. This …

Palsgraf Revisited (Again), Joseph W. Little

UF Law Faculty Publications

Dean Prosser wrote Palsgraf Revisited because he believed that courts had inadequate standards to make predictable and consistent duty decisions. He expressed his discontent by providing a thumbnail description of decisions that appeared to him to be rationally irreconcilable. Acknowledging that Cardozo's powerful Palsgraf imagery had been persuasive to most courts, Prosser fastened upon it as the focus of his dissatisfaction. Hence, Prosser provided us Palsgraf Revisited.

I fault Prosser for looking for a nirvana that has no existence in law. Rarely will a court make a difficult, fact based, policy driven decision that all thoughtful legal commentators will …

Claims Under The Administrative Procedure Act Before The Court Of International Trade — A General Overview And Analysis Of Significant Recent Jurisprudence, Mark A. Moran, Wentong Zheng

UF Law Faculty Publications

At first blush, the subject matter of this paper would seem a particularly anomalous topic for discussion at a conference devoted to the jurisprudence of the U.S. Court of International Trade (“CIT”). After all, among the some four thousand published decisions the CIT has issued since its creation in 1980, relatively few have involved causes of action predicated explicitly on the Administrative Procedure Act (“APA”). One might reasonably ask why we should bother devoting an entire panel discussion to an issue that so infrequently commands the CIT’s attention.

The first answer is that all is not as it seems, and …

Globalization Of Law Firms: A Survey Of The Literature And A Research Agenda For Further Study, D. Daniel Sokol

UF Law Faculty Publications

The international expansion of law firms plays a critical role in understanding the business of law and the nature of globalization. This article responds to two articles on law firm expansion in the Indiana University - Bloomington Law School symposium on the Globalization of the Legal Profession. The article utilizes management studies' theoretical work on internationalization and applies it to law firm expansion to explain law firm strategic decision-making. The author creates a six part taxonomy for types of law firm expansion and provides a snapshot of the increasing U.S./U.K. dominance of capital markets, corporate and mergers and acquisitions legal …

Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Christine A. Klein, Sandra B. Zellmer

UF Law Faculty Publications

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This Article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

Social Security Reform: Lessons From Private Pensions, Karen C. Burke, Grayson M.P. Mccouch

UF Law Faculty Publications

Widespread concerns about the long-term fiscal gap in Social Security have prompted various proposals for structural reform, with individual accounts as the centerpiece. Carving out individual accounts from the existing system would shift significant risks and responsibilities to individual workers. A parallel development has already occurred in the area of private pensions. Experience with 401(k) plans indicates that many workers will have difficulty making prudent decisions concerning investment and withdrawal of funds. Moreover, in implementing any system of voluntary individual accounts, it will be important to design default settings that provide appropriate guidance for workers with heterogeneous levels of financial …

National Interests, Foreign Injuries, And Federal Forum Non Conveniens, Elizabeth T. Lear

UF Law Faculty Publications

This Article argues that the federal forum non conveniens doctrine subverts critical national interests in international torts cases. For over a quarter century, federal judges have assumed that foreign injury cases, particularly those filed by foreign plaintiffs, are best litigated abroad. This assumption is incorrect. Foreign injuries caused by multinational corporations who tap the American market implicate significant national interests in compensation and/or deterrence. Federal judges approach the forum non conveniens decision as if it were a species of choice of law, as opposed to a choice of forum question. Analyzing the cases from an adjudicatory perspective reveals that in …

Legal Information Management In A Global And Digital Age: Revolution And Tradition, Claire M. Germain

UF Law Faculty Publications

This article presents an overview of the public policy issues surrounding digital libraries, and describes some current trends, such as Web 2.0, the social network. It discusses the impact of globalization and the Internet on international and foreign law information, the free access to law movement and open access scholarship, and mass digitization projects, then turns to some concerns, focusing on preservation and long term access to born digital legal information and authentication of official digital legal information. It finally discusses new roles for librarians, called upon to evaluate the quality of information teach legal research methodology and be advocates …