Digital Commons Network^™

Down To The Wire: Assessing The Constitutionality Of The National Security Agency's Warrantless Wiretapping Program: Exit The Rule Of Law, Fletcher N. Baldwin Jr., Robert B. Shaw

UF Law Faculty Publications

The article discusses the constitutionality of warrantless wiretapping surveillance by the National Security Agency (NSA) on U.S. citizens. The wiretapping program existed weeks after the September 11, 2001 attacks, on the justification that Congress authorized the president to wiretap U.S. citizens without a warrant, and that the president had inherent authority as commander-in-chief. But it is argued that Congress did not expressly authorize the president to conduct warrantless wiretapping and that he does not have such inherent authority.

We intend this Article to be a commentary on the constitutionality of the NSA wiretapping program solely as it relates to the …

Liberating Estates Law From The Constraints Of Copyright, Lee-Ford Tritt

UF Law Faculty Publications

This Article addresses a disturbing statutory phenomenon of enormous importance to any artist, composer, writer, scholar, scientist or innovator. The phenomenon, which I have termed “estate-bumping,” has driven an unintended wedge between copyright law and estates law by effectively preventing authors of copyrights from disposing of their copyright interests through common estate planning mechanisms. Current copyright law imposes a unique restraint on the testamentary freedom of copyright authors, a restraint not imposed on any other type of property owner. In effect, this restraint enables unintended beneficiaries to rewrite, or “bump”, an author’s estate plan. Thus, it is copyright law – …

Caregivers In The Courtroom: The Growing Trend Of Family Responsibilities Discrimination, Joan C. Williams, Stephanie Bornstein

UF Law Faculty Publications

When people think of sex discrimination, they tend to think of glass-ceiling discrimination and sexual harassment. This article describes and documents a rapidly expanding area of employment discrimination law: family responsibilities discrimination, or "FRD." FRD is employment discrimination against people based on their caregiving responsibilities, whether for children, elderly parents, or ill partners. FRD includes both "maternal wall" discrimination -- the equivalent of the glass ceiling for mothers -- and discrimination against men who participate in childcare or provide care for other family members.

School Discipline 101: Students' Due Process Rights In Expulsion Hearings, Melissa Frydman, Shani M. King

UF Law Faculty Publications

Upholding the principle that school districts, as state actors, shall not deprive a student of liberty or property without due process of law, courts have expanded for more than four decades the Fourteenth Amendment's due process protection of public school students. Understanding this principle is essential to representing children in school discipline proceedings. Before presenting a practical guide to representing students in these proceedings, we offer a brief history of due process protection for children.

On Disposable People And Human Well-Being: Health, Money And Power, Berta E. Hernández-Truyol

UF Law Faculty Publications

The foundational premise of this essay is that health and well-being are human rights issues. My focus on this theme, specifically within the human rights paradigm, is new, passionate, and personal. On December 15, 2005, just three months before the conference that prompted the writing of this essay, I lost my partner of over 20 years. She fought a valiant, strong, and dignified fight against cancer--a journey I traveled with her. During that time I learned much about health systems and health care. Most saliently, notwithstanding the reality of the extraordinarily good care she ultimately received, I realized there is …

Judaism Without Ordinary Law: Toward A Broader View Of Sanctification, Jonathan R. Cohen

UF Law Faculty Publications

With the functional constriction of Jewish law to the ritual, it is easy to relegate Torah and, with it, our sense of sanctification, to the ritual. Such is a great loss. Recognizing sanctification as not only separation but also elevation may help us see the possibility of pursuing sanctification throughout our lives. In other words, the legal constriction produced by history should not become a spiritual one as well.

An Instrumental Theory Of Market Power And Antitrust Policy, Jeffrey L. Harrison

UF Law Faculty Publications

Since Judge Hand's pivotal opinion in United States v. Aluminum Company of America (Alcoa), the possession of monopoly power has been treated as presumptively legal. The focus of the antitrust laws since then has been on defining when that power is abused. This approach to market power cannot be squared with the prevailing view that antitrust law is grounded in economic theory. To understand why, one must see market power for what it is: the ability of a firm to raise prices above competitive levels and to profitably keep them there. Seen in this light, market power is indistinguishable from …

New Explorations In Culture And Crime: Definitions, Theory, Method, Kenneth B. Nunn

UF Law Faculty Publications

Culture affects criminal law in at least two key ways. First, culture and crime symbiotically define each other. Second, culture helps explain which courtroom narratives will be successful, and which will not. Culture influences who will be arrested, charged, convicted, and what sentence they will receive. Indeed, the invisible hand of culture drives the process of criminalization and helps to determine which acts we will sanction through criminal statutes.

A Consent Theory Of Unconscionability: An Empirical Study Of Law In Action, Larry A. Dimatteo, Bruce L. Rich

UF Law Faculty Publications

This Article provides the findings of an empirical study of 187 court cases in which the issue of the unconscionability of a contract or a contract term was addressed by the courts. The cases were drawn from two time periods. The first set of cases can be viewed as the first generation of Uniform Commercial Code (U.C.C.)-style unconscionability cases from 1968-1980. The second generation of unconscionability cases were from the time period of 1991-2003. The two groups of cases allow us to not only analyze a series of questions and factors, but also to make intergenerational or longitudinal observations. The …

Catastrophic Risk And Governance After Hurricane Katrina: A Postscript To Terrorism Risk In A Post-9/11 Economy, Robert J. Rhee

UF Law Faculty Publications

This essay inquires into the political economy and system of governance that have made catastrophes more frequent and severe. The system of governance that is designed to mitigate risk and respond to catastrophes can be ineffective, or worse, increase the risk of harm through unintended consequences. Human influence must be considered a source of collateral risk, the kind that leads to a systemic crisis or exacerbates one. This essay concludes with some brief proposals, discussion topics more than completed ideas, which may facilitate further academic and political dialogue on effective governance and public risk management. They include a catastrophe tax, …

Children And Immigration: International, Local, And Social Responsibilities, Berta E. Hernández-Truyol, Justin Luna

UF Law Faculty Publications

This essay focuses on the human rights of immigrant children, regardless of the legality of their presence within U.S. borders, especially with respect to health, education, and welfare. In that context, the work explores, as the title suggests, the international, local, and social/cultural normative standards that structure the responsibilities—independently and collectively, that proverbial village—with respect to children's well-being. We develop these ideas in three parts. First, we address the foundations of the human rights idea and specifically enumerate the particular normative notions, including international treaties that govern children's lives. Next, we discuss immigration in the United States, with particular attention …

Old Poison In New Bottles: Trafficking And The Extinction Of Respect, Winston P. Nagan, Alvaro De Medeiros

UF Law Faculty Publications

The new form of slavery comes by that relatively innocuous title, “trafficking.” Trafficking is an illustration of the dynamic character of the social and antisocial forces that conspire to undermine the idea of human dignity in the world community. The forms of crime are in fact dynamic. Frequently the institutional forces behind crime have capital, lethal functionaries, technology, and a capacity to advance criminal interests, both within states and across state lines. To the extent that crime itself is dynamic it must as well be acknowledged that human rights violations in general also have a dynamic character. In short, when …

Mexican Law, Michael W. Gordon

UF Law Faculty Publications

The Herget-Camil book remained the sole overview of the Mexican legal system for two decades. In 1998, Professor Jorge A. Vargas of the University of San Diego began his series of volumes on Mexican Law: A Treatise for Legal Practitioners and International Investors, published by West. That series has proven to be very successful, serving well its intended audience — foreigners (non-Mexicans) engaging in transactions with Mexico. However, it was not intended to be an introduction to the Mexican legal system with regard to its history, culture, institutions, actors, procedure, rules or sources of law.

Now the gap is …

Supreme Guidance For Wet Growth: Lessons From The High Court On The Powers And Responsibilities Of Local Governments, Michael Allan Wolf

UF Law Faculty Publications

Before the merger of water law and land use planning can occur, local and state regulators need strong guidance from experts in the field, not only in extra-legal fields such as planning, hydrology, geology, engineering, biology, and transportation, but also in mainstream legal areas including legislation (local, state, and federal), administrative law, and enforcement. The purpose of this article is to identify a somewhat unorthodox source of guidance - the United States Supreme Court, specifically the Rehnquist Court from October, 1984, through June, 2005, a period of remarkable stability for the nation’s highest tribunal.

Lipstick, Light Beer, And Backloaded Savings Accounts, Karen C. Burke, Grayson M.P. Mccouch

UF Law Faculty Publications

The article addresses current proposals for expanding tax-preferred individual savings accounts and their implications for retirement security and tax policy. The authors argue that the yield-exempt approach embraced by the Bush Administration in its proposals is likely to generate enormous long-term revenue losses, exacerbate inequalities in income and wealth, and erode broad-based coverage under employer-sponsored retirement plans. In addition to these fiscal and distributional concerns, they conclude that the proposals pose a serious obstacle to fundamental tax reform.

Tierra Y Libertad: The Social Function Doctrine And Land Reform In Latin America, Thomas T. Ankersen, Thomas Ruppert

UF Law Faculty Publications

Latin America has been caught for centuries in a vicious cycle of land consolidation and land reform; the issue perennially resurfaces since concentration of land and associated resources results in conflict. Latin American nations are among the world's leaders when it comes to the inequality of land distribution.

Land reform, or agrarian reform, as it is more commonly referred to in Latin America, is hardly a new phenomenon. As we will show, the need to develop a policy to redress the consolidation of lands by a powerful few and redistribute it in the name of equity and development has its …

Post-Tenure Scholarship And Its Implications, Jeffrey L. Harrison

UF Law Faculty Publications

Periodically in the popular press and even in academic circles, the question arises of whether professors should be granted lifetime employment contracts based on a sample of four to six years of a probationary period. Further clouding the issue of how easily tenure should be granted is the question of what determines tenure. Is it a reward for past efforts or based on a forecast of future productivity? These concepts may seem like the same thing but they are not. Accordingly, the huge commitment of resources that occurs when tenure is granted paired with the Author's observations of pre-tenure scholars …

Loyalty's Reward — A Felony Conviction: Recent Prosecutions Of High-Status Female Offenders, Michelle S. Jacobs

UF Law Faculty Publications

Between 2001 and 2004, six high-status women were charged with crimes in connection with corporate criminal cases. The public is familiar with some of them, although not all of their cases have been covered equally in the press. With the exception of an occasional article now and then mentioning the exploding rates of female incarceration, women's crime tends to be invisible to the public eye. The statistical data the government collects and analyzes on women and crime will be discussed. This article will focus on the prosecution of the individual cases of Lea Fastow, Betty Vinson, and Martha Stewart. Their …

The Opacity Of Transparency, Mark Fenster

UF Law Faculty Publications

The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance, promises the moon -- a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public's engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes …

Ria Federal Tax Handbook 2006 (Book Review), Elizabeth Outler

UF Law Faculty Publications

Review and explanation of the features of the RIA Federal Tax Handbook.

Parentage At Birth: Birthfathers And Social Fatherhood, Nancy E. Dowd

UF Law Faculty Publications

Deciding who should be a child's legal parents at birth seems a simple task. Instinctively, the answer is the child's biological mother and father. Historically, the answer would have been different depending on whether the child was born within a marriage or not; marriage trumped biology, at least with respect to fathers. A husband was generally presumed to be the father of a child born to his wife, even if there was no genetic connection. A number of changes have moved parentage away from the marital/genetic/patriarchal model that valued the marital family above genes or social fatherhood. Modern principles of …

Is It Sometimes Good To Run Budget Deficits? If So, Should We Admit It (Out Loud)?, Neil H. Buchanan

UF Law Faculty Publications

There are bad deficits and there are good deficits. What makes a fiscal deficit good or bad depends on both the context in which the deficit is run and the reason that the deficit is rising. The belief that it is unquestionably foolish to adopt policies that directly or indirectly increase the government's annual borrowing on the financial markets - which is what it means to run a budget deficit - is not the universal truth that the current conventional wisdom might imply. Budget deficits are potentially dangerous and must be monitored carefully, but they are not always, inevitably, completely, …

Courting Failure, Lynn M. Lopucki

UF Law Faculty Publications

Courting Failure is the story of a bad venue statute that led to rampant forum shopping by large public companies. This forum shopping induced competition among bankruptcy courts for the cases. That competition in turn caused the unnecessary failure of many of the reorganizing companies and corrupted the United States Bankruptcy Courts. Congress has not acted to fix the statute because of Delaware's parochial interest in preserving the status quo.

Recent Developments In Federal Income Taxation: The Year 2005, Martin J. Mcmahon Jr., Ira B. Shepard

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 2005 - 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 …

The Experimental Use Exception To Patent Infringement: Do Universities Deserve Special Treatment?, Elizabeth A. Rowe

UF Law Faculty Publications

The experimental use exception is a common law exception to the patent-holder's exclusive right of use. It permits the use of another's patented device when such use is for philosophical inquiry, curiosity, or amusement. It has recently come under attack by many who consider it too narrow. They fear that the courts' "narrowing" of the experimental use exception will stifle research and innovation. Much of the discontent with the doctrine has been spurred by a relatively recent Federal Circuit opinion, Madey v. Duke University, which makes clear that a research university does not receive immunity under the experimental use …

Some Preliminary Statistical, Qualitative, And Anecdotal Findings Of An Empirical Study Of Collegiality Among Law Professors, Michael L. Seigel, Kathi Minor-Rubino

UF Law Faculty Publications

In advance of a sophisticated analysis of the survey data, one must be very careful in drawing any overall conclusions about the state of collegiality and workplace well-being in legal academia. Certainly, no correlative assertions can be made. Nevertheless, this preliminary review has revealed some noteworthy information. Certainly, law faculties are far from perfectly collegial associations, and many if not most law professors have a gripe of one sort or another. Despite these facts, however, the overwhelming majority of faculty members appear to be happy with their choice of career. The qualitative data also leaves one with the impression that, …

The Law Of The Lakes: From Protectionism To Sustainability, Christine A. Klein

UF Law Faculty Publications

This Article has a practical goal: to convince state lawmakers of the need to regulate in a comprehensive and evenhanded manner, avoiding short-sighted fixes or politically appealing shortcuts. To accomplish that goal, Part I focuses upon another region of the country-the Colorado River Basin-where residents have also undertaken the task of managing a water system that includes two nations(The United States and Mexico) and numerous states. Learning from the successes and failures of the resultant Law of the River, this Article derives guiding principles for the emerging Law of the Lakes. Part II makes a crucial distinction between protectionism and …

Embracing Uncertainty, Complexity, And Change: An Eco-Pragmatic Reinvention Of A First-Generation Environmental Law, Mary Jane Angelo

UF Law Faculty Publications

Recent scientific reports demonstrate that despite more than thirty years of environmental regulation, bird and wildlife species as well as ecosystem services, are in unprecedented decline. Pesticides are at least in part to blame for these profound declines. U.S. pesticide law has failed to carry out its mission of environmental protection. A number of recently-filed lawsuits assert that the registration of certain pesticides violates the federal Endangered Species Act. One of the great ironies of environmental law is that the ecological consequences of pesticide use, which fueled the environmental movement of the late 1960s and early 1970s, largely have been …

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

UF Law Faculty Publications

The regulatory takings doctrine, the Supreme Court declared in Lingle v. Chevron, concerns the effects of a regulation on the incidents of property ownership. It serves as a constitutional protection against regulations that impose the functional equivalent to a classic taking of private property (an appropriation by the state or an ouster), and it requires compensation for owners who are subject to such regulations. Just as significant as declaring what the regulatory takings doctrine is, theCourt in Lingle also declared what it is not: it is not a judicial check onthe validity or reasonableness of a regulation that …

The Case Against Income Averaging, Neil H. Buchanan

UF Law Faculty Publications

Should tax liability be based on annual income or on the average of a taxpayer's income earned over the space of several years (or even a lifetime)? This article assesses proposals to replace the current method of computing taxes with a system that would allow taxpayers to smooth out their income tax liabilities by offsetting high-income years with low-income years. While the usual discussion of this issue revolves around supposed horizontal inequities, I show that it is not clear that the current system generates horizontal inequities at all; and even if it does, I suggest as a normative issue that …