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University of Florida Levin College of Law

2004

Articles 1 - 30 of 48

Full-Text Articles in Law

Patriotism, Nationalism, And The War On Terror: A Mild Plea In Avoidance, Winston P. Nagan, Craig Hammer Dec 2004

Patriotism, Nationalism, And The War On Terror: A Mild Plea In Avoidance, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

Professor Viet Dinh, a major drafter of and architectural influence upon the USA PATRIOT Act, provides an indirect scholarly justification for the far-reaching powers of the act in his article, Nationalism in the Age of Terror. Part II of this Commentary begins by exploring the ostensible underpinnings of Dinh's article by examining his understanding of nationalism. Part III explains why crony nationalism is not the best defense against global terrorism. Part IV then analyzes some significant United States foreign policy undertakings that have arguably negatively affected United States national security. Finally, in Part V we conclude by gleaning lessons from …

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Yes, Thankfully, Euclid Lives, Charles M. Haara, Michael Allan Wolf Nov 2004

Yes, Thankfully, Euclid Lives, Charles M. Haara, Michael Allan Wolf

UF Law Faculty Publications

Professors Haar and Wolf reiterate their endorsement of Progressive jurisprudence, as embodied in the Supreme Court's opinion in Village of Euclid v. Ambler Realty Co., despite Professor Eric Claeys's effort to expose the political theory underlying Progressive legal thought. They highlight problems with Professor Claeys's portrayal of the actual practice of zoning and with his use of history, problems that seriously undercut Professor Claeys's findings regarding the political beliefs of early zoning and planning advocates, the evolution of zoning law in the courts, and the role natural law played in American legal history.

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A Principled Solution For Negligent Infliction Of Emotional Distress Claims, Robert J. Rhee Oct 2004

A Principled Solution For Negligent Infliction Of Emotional Distress Claims, Robert J. Rhee

UF Law Faculty Publications

This article examines negligent infliction of emotional distress, one of the most controversial and least uniform fields of tort law. A review of the judicial and scholarly literature has shown that traditional tort analysis fails. In its stead, the common law has not found an alternative theory of liability that balances the competing interests. Rather, the approach has been to create rules of law based on probabilistic templates. Its dual purpose is to preclude individualized analysis and to limit aggregate liability. This article rejects the current doctrines as inherently arbitrary and proposes a complete overhaul of the law. To find …

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A Brief Exploration Of Space: Some Observations On Law School Architecture, Robert H. Jerry Ii Oct 2004

A Brief Exploration Of Space: Some Observations On Law School Architecture, Robert H. Jerry Ii

UF Law Faculty Publications

The nature of the space in which we work, teach, and study is important. The design of our surroundings affects our attitudes, moods, self-esteem, efficiency, and sense of community. For our students, space makes a difference in the quality of the learning experience. It is possible to teach and learn in deficient space, but it is easier to teach and learn when both faculty and students are comfortable, happy, and not distracted by the inconveniences and annoyances of a poorly designed environment. Inadequate space prevents us from achieving all of which we are capable, thereby diminishing our productivity, creativity, and …

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Cuba And Good Governance, Berta E. Hernández-Truyol Oct 2004

Cuba And Good Governance, Berta E. Hernández-Truyol

UF Law Faculty Publications

The idea of “good governance” embraces the concept that economic success is inextricably linked to democratic and just governance. This essay explores how Cuba fares in light of good governance standards. At the outset, an overall observation is appropriate: if one considers the traditional criteria, to talk about Cuba and good governance might simply be an impossible task-- indeed an oxymoron--if we use as the starting point of analysis the existing definitions of governance. Therefore, in order to engage this thesis, I will deconstruct the idea of good governance into two parts--processes and outcomes. First, I explore the theoretical origins, …

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The Matthew Effect And Federal Taxation, Martin J. Mcmahon Jr. Sep 2004

The Matthew Effect And Federal Taxation, Martin J. Mcmahon Jr.

UF Law Faculty Publications

The “Matthew Effect” is a synonym for the well-known colloquialism, “the rich get richer and the poor get poorer.” This Article is about the Matthew Effect in the distribution of incomes in the United States and the failure of the federal tax system to address the problem. There has been a strong Matthew Effect in incomes in the United States over the past few decades, with an increasing concentration of income and wealth in the top one percent. Nevertheless, there has been a continuing trend of enacting disproportionately large tax cuts for those at the top of the income pyramid. …

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Is "Don't Ask, Don't Tell" Unconstitutional After Lawrence? What It Will Take To Overturn The Policy, Diane H. Mazur Jul 2004

Is "Don't Ask, Don't Tell" Unconstitutional After Lawrence? What It Will Take To Overturn The Policy, Diane H. Mazur

UF Law Faculty Publications

There can be a certain politeness to legal challenges to "Don't Ask, Don't Tell," the congressional policy that attempts - fitfully, incompletely, and arbitrarily - to exclude gay citizens from both the responsibilities and privileges of military service.' We consider whether the military has articulated a "rational basis" for the policy – some explanation of the military's belief that it is at least rational (as opposed to irrational) to classify servicemembers as straight or gay and accept or reject them accordingly, all in the interest of military effectiveness. We accept the fact that judges assume there is a need for …

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The Death Penalty And Due Process In Biblical Law, Richard H. Hiers Jul 2004

The Death Penalty And Due Process In Biblical Law, Richard H. Hiers

UF Law Faculty Publications

The first part of this article reviews biblical texts that have been (or could plausibly be) read as condemning or repudiating capital punishment. The next, and necessarily more detailed and extensive part, discusses the many texts that explicitly call for, or illustrate application of the death penalty. This section also describes the different prescribed methods for executing offenders, identifies the persons assigned responsibility for carrying out executions, and examines biblical rationales for capital punishment A third part describes a variety of biblical provisions that, using modern legal terminology, may be said to afford certain due process procedures and protections. The …

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Critical Race Histories: In And Out, Darren Lenard Hutchinson Jun 2004

Critical Race Histories: In And Out, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contributes to the completion of some “unfinished business” within Critical Race Theory by engaging insufficiently examined external and internal critiques of critical race scholarship. The external critique of critical race nihilism and the new insider critique that dichotomizes identity theories and material harm warrant extended reflection because there are critical deficiencies that problematize these arguments. The nihilism critique, for example, falsely associates CRT with more radical forms of postmodernism and overlooks leading works in CRT which demonstrate that Critical Race Theorists inhabit an admittedly contradictory space. Critical Race Theorists radically deconstruct the racial hierarchies that law constitutes and …

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Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster May 2004

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

UF Law Faculty Publications

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. This article argues that the Court's suspicions are well founded but that blame for judicial and administrative noncompliance lies with the Court's bifurcated approach to the Takings Clause.

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Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy Apr 2004

Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy

UF Law Faculty Publications

This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years.

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Rationalizing The Allocative/Distributive Relationship In Copyright, Jeffrey L. Harrison Apr 2004

Rationalizing The Allocative/Distributive Relationship In Copyright, Jeffrey L. Harrison

UF Law Faculty Publications

It is the position of this article that the benefits of a regime of copyright law can be maintained while shedding at least some of the wastefulness of monopolistic competition. This article cuts against the grain of modem copyright law by making the case that a more substantive approach to the issues of creativity and authorship would lower costs, streamline the system, and raise the level of socially beneficial creativity. In Section II, I will elaborate on the allocative/distributive distinction and their interconnectedness. In Section III, I will focus on an enhanced creativity standard and argue that an elevated standard …

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Lessons From And For "Disabled" Students, Sharon E. Rush Apr 2004

Lessons From And For "Disabled" Students, Sharon E. Rush

UF Law Faculty Publications

The traditional understanding of "disabled" means to have a physical, mental, or emotional limitation. It is unfortunate that the word has negative connotations because we all have the ability to do some things and not others. An individual's disabilities, traditional or otherwise, do not diminish the person or detract from the universal tenet that all people are inherently equal and entitled to be treated with dignity. Generally, it is unproductive to compare the circumstances of one group with another for the purpose of discerning which group has it better or worse. Struggles by different groups to achieve equality have different …

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Mindfulness: Foundational Training For Dispute Resolution, Leonard L. Riskin Mar 2004

Mindfulness: Foundational Training For Dispute Resolution, Leonard L. Riskin

UF Law Faculty Publications

This Article addresses the problem of mindlessness in counseling, negotiating, and mediating, and offers potential solutions and recommendations for developing foundational capacities through training in mindfulness meditation.

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Principles For Constitutions And Institutions In Promoting The Rule Of Law, Jon L. Mills Mar 2004

Principles For Constitutions And Institutions In Promoting The Rule Of Law, Jon L. Mills

UF Law Faculty Publications

Proceedings of the Fourth Annual Legal & Policy Issues in the Americas Conference (2003). Panel IV. Comparative Constitutional Approaches to the Rule of Law and Judicial Independence.

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Socioeconomics: Choice And Challenges, Jeffrey L. Harrison Feb 2004

Socioeconomics: Choice And Challenges, Jeffrey L. Harrison

UF Law Faculty Publications

The crucial link between rules and policy is choice. Rules require people to make choices that further policy. In addition, a single rule that is claimed to advance a specific policy involves a behavioral assumption of one kind or another.

In this Article, the Author offers some closing observations with regard to the collection of articles from the Teaching Law & Socioeconomics Symposium. The Author's comments fall into two categories. First, he discusses an important theme that he has found throughout the articles: the importance of linking policy with the rules that further those policies by examining the determinants …

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Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch Jan 2004

Family Limited Partnerships: Discounts, Options, And Disappearing Value, Karen C. Burke, Grayson M.P. Mccouch

UF Law Faculty Publications

Family partnerships have been become increasingly popular as a means of avoiding estate and gift taxes. As other estate freezing techniques have been closed off by statutory anti-abuse rules, estate planners have increasingly resorted to partnerships as a vehicle for transferring assets within a family at deeply discounted values. Discounts ranging from one-third to over one-half of the value of the underlying assets are routinely claimed, and often allowed, based on lack of marketability and lack of control, even where these disabilities have no lasting or ascertainable economic effect. Nevertheless, the use of family partnerships to suppress value for transfer …

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Recent Developments In Federal Income Taxation: The Year 2003, Ira B. Shepard, Martin J. Mcmahon Jr. Jan 2004

Recent Developments In Federal Income Taxation: The Year 2003, 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 2003 - 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 …

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A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright Jan 2004

A New Time For Denominators - Toward A Dynamic Theory Of Property In The Regulatory Takings Relevant Parcel Analysis, Danaya C. Wright

UF Law Faculty Publications

This Article explores the question of how the courts should calculate the denominator in the just compensation equation. The denominator is the amount of property a claimant owns, against which the effects of regulation will be measured. If a landowner owns a single acre that is severely regulated, the takings fraction for the amount of property taken compared to that owned will approach one. If, on the other hand, the landowner owns 100 acres and only one is regulated, the amount of harm is only 1% in comparison to the total amount owned. This Article advocates a paradigm shift in …

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Asking The Family Question, Berta E. Hernández-Truyol Jan 2004

Asking The Family Question, Berta E. Hernández-Truyol

UF Law Faculty Publications

Today, the international community is taking strides to address the needs/concerns of the family and to develop norms regarding its protection. However, principles of international law that address issues regarding the family are relatively new. Moreover, to date, these principles have primarily focused on certain specific rights, such as children's rights, women's rights, and child labor rights, rather than incorporating family well-being as a central aim of all international law and relations. This essay proposes a fundamental shift in the approach to international policy and law-making, as well as the engagement of international relations, to include a family-sensitive, culturally inclusive, …

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The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright Jan 2004

The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright

UF Law Faculty Publications

The U.S. Supreme Court's June 2003 decision in Lawrence v. Texas may prove to be one of the most important civil rights cases of the twenty-first century. It may do for gay and lesbian people what Brown v. Board of Education did for African-Americans and Roe v. Wade did for women. While I certainly hope so, my enthusiasm is tempered by the fact that discrimination on the basis of race or gender has not disappeared. Will Lawrence signal meaningful change, or will its revolutionary possibilities be stifled by endless cycles of excuse and redefinition? The case is important, but I …

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Panel V. Human Rights Commitments In The Americas: From The Global To The Local, Berta E. Hernández-Truyol Jan 2004

Panel V. Human Rights Commitments In The Americas: From The Global To The Local, Berta E. Hernández-Truyol

UF Law Faculty Publications

This essay next makes three key observations concerning the rule of law: (1) the relationship between the rule of law and human rights; (2) the interrelatedness of the international rule of law to a local rule of law; and (3) the insights the concept of the rule of law affords to the exploration of the nexus between trade and human rights. To conclude, this piece suggests a holistic approach to the rule of law. Such a model recognizes both the instrumental or rule book dimension and the substantive or rights dimension of the rule of law. It also accepts that …

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The Messenger Model: Don't Ask, Don't Tell?, Jeffrey L. Harrison Jan 2004

The Messenger Model: Don't Ask, Don't Tell?, Jeffrey L. Harrison

UF Law Faculty Publications

This article makes the case that the messenger model is either tacitly or inadvertently a "don't ask, don't tell" policy when it comes to competitor cooperation. In addition, this article presents an economic framework that explains how such a policy may benefit health care consumers. Finally, it is suggested that the "don't ask, don't tell" policy has created an area of per se legality that precludes an examination designed to distinguish consumer-benefiting practices from those that provide no benefit.

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The Insurance Aspects Of Damages, Robert H. Jerry Ii, Douglas R. Richmond Jan 2004

The Insurance Aspects Of Damages, Robert H. Jerry Ii, Douglas R. Richmond

UF Law Faculty Publications

"[I]t is difficult ... to imagine an event or transaction that does not involve insurance in some way." So it is with the most salient event in the lives of Tony and Donna Sabia, whose son Tony John Sabia, or "Little Tony," was born with profound disabilities. In the final analysis, the ability of Tony and Donna to pay for the future medical care and living expenses needed by their son depends on whether they can reach the liability insurance coverage possessed by the health care providers who attended Donna and Little Tony at the time of his birth. It …

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Sleeping With The Enemy: Tales Of Yankee Power, Globalization, And The Transformation Of Economy By Cartel In The European Union, Clifford A. Jones Jan 2004

Sleeping With The Enemy: Tales Of Yankee Power, Globalization, And The Transformation Of Economy By Cartel In The European Union, Clifford A. Jones

UF Law Faculty Publications

Christopher Harding and Julian Joshua's Regulating Cartels in Europe: A Study of Legal Control of Corporate Delinquency (Regulating Cartels) is a significant and well-written book that deserves to be widely read by scholars, practitioners, and students in the United States as well as in Europe and other jurisdictions with antitrust laws. For those readers to whom European Community (E.C.) competition law remains largely a mystery, this book also serves as a good introduction to the European system because of its detailed description in the cartel context of the development of the European Community's substantive and procedural rules for handling enforcement …

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Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin Jan 2004

Teaching And Learning From The Mediations In Barry Werth's Damages, Leonard L. Riskin

UF Law Faculty Publications

This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."

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Institutional Academic Freedom - A Constitutional Misconception: Did Grutter V. Bollinger Perpetuate The Confusion?, Richard H. Hiers Jan 2004

Institutional Academic Freedom - A Constitutional Misconception: Did Grutter V. Bollinger Perpetuate The Confusion?, Richard H. Hiers

UF Law Faculty Publications

This article begins with a review of language that eventually gave rise to the concept of institutional academic freedom, and includes a summary of lower court decisions embracing that concept or notion. The second part identifies certain constitutional problems in connection with the idea that institutional academic freedom can somehow be derived from or based upon the First Amendment. The third part describes and analyzes language in the Court's Grutter decision, language that may or may not have the effect of validating the concept of institutional academic freedom under the First Amendment.

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Is Yale Kamisar As Good As Joe Namath: A Look Back At Kamisar's Prediction Of Miranda V. Arizona, Tracey Maclin Jan 2004

Is Yale Kamisar As Good As Joe Namath: A Look Back At Kamisar's Prediction Of Miranda V. Arizona, Tracey Maclin

UF Law Faculty Publications

No abstract provided.

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The New Bush National Security Doctrine And The Rule Of Law, Winston P. Nagan, Craig Hammer Jan 2004

The New Bush National Security Doctrine And The Rule Of Law, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

The war on terrorism has dramatically impacted the direction of U.S. foreign policy, as well as the strategic and tactical operations for securing its objectives. Three questions central to U.S. foreign relations are whether these interests are consistent with international law; whether the United States seeks to modify international law to secure its interests; or whether foreign policy makers see the need to significantly change international legal standards. The aftermath of the of the attacks of September 11, 2001 in the United States triggered an intuitive reaction that the normal rules of restraint embodied in international law might no longer …

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Querying Lawrence, Berta E. Hernández-Truyol Jan 2004

Querying Lawrence, Berta E. Hernández-Truyol

UF Law Faculty Publications

In 2003, the Supreme Court in the landmark decision Lawrence v. Texas found a Texas law, banning homosexual, but not heterosexual, sodomy to be unconstitutional. Thus, Lawrence ended the Bowers era in which morality was deemed to be a justification for discrimination against gays and lesbians. While the decision did bring to United States Constitutional analysis the radical idea that gays and lesbians are people too, it stopped short of addressing the real problem the case presents--the existence of a second-class citizenry. This Article examines the Lawrence decision in light of both the international, regional, and foreign jurisprudence and the …

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