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Terminology Matters: Dangers Of Superficial Transplantation, Silvia Ferreri, Larry A. Dimatteo Apr 2019

Terminology Matters: Dangers Of Superficial Transplantation, Silvia Ferreri, Larry A. Dimatteo

UF Law Faculty Publications

The history of legal transplantations from one legal system to another is as long as law itself. It has numerous edifications and names including reception, borrowing, and influence. Legal transplantations from one legal system to another come at various levels of substance and penetration including the transplantation of a legal tradition (English common law to the United States and the English Commonwealth), transplantation of national law (Turkey's adoption of Swiss Civil Code), transplantation of an area of law (Louisiana's adoption and retention of French sales law), transplantation of a rule or concept (Chinese adoption of principle of good ...


The Armed Society And Its Friends: A Reckoning, Charles W. Collier Apr 2019

The Armed Society And Its Friends: A Reckoning, Charles W. Collier

UF Law Faculty Publications

This Article provides a selective introduction to some of the main social, cultural, historical, and intellectual issues surrounding gun violence and the desultory policy “debates” over gun control in America.

Unregulated gun violence, unrestricted gun violence, unlimited gun violence: these are the grave “new normal” (a term coined in financial economics) on the otherwise pastoral landscape of America. Sociologically speaking, this level of gun violence is no longer considered deviant, such that “special sanctions” would be imposed to prevent it.

Gun violence and the lack of gun control have also been described as “tragic”—a cultural tragedy—and so they ...


Child Migrants And America’S Evolving Immigration Mission, Shani M. King Apr 2019

Child Migrants And America’S Evolving Immigration Mission, Shani M. King

UF Law Faculty Publications

This Article explores the many challenges—legal and otherwise—that child migrants face as they attempt to navigate the complex web of courts, laws, and shifting political landscapes to become naturalized United States citizens, while putting these challenges in the context of an immigration system that has long been shaped by politics of exclusion and xenophobia that have shaped immigration law and policy in the United States for over one-hundred years. Such an investigation comes at a time when the issue of immigration in the United States is increasingly complex and contested. As the Trump administration mulls over new prototypes ...


The Statutory Public Interest In Closing The Pay Gap, Stephanie Bornstein Jan 2019

The Statutory Public Interest In Closing The Pay Gap, Stephanie Bornstein

UF Law Faculty Publications

This Essay explores the role that the statutory public interest should play in the enforcement of rights under the Equal Pay Act of 1963 (EPA). Current data shows that, even fifty-five years after the enactment of federal law outlawing sex based pay discrimination, the gender pay gap inflicts huge costs on women, their families, and the U.S. economy, echoing the public concerns that led to the statute’s original passage. That Fair Labor Standards Act of 1938 (FLSA) and EPA rights cannot be waived by an employee calls into question two common employer pay-setting practices often excused under federal ...


Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance Jan 2019

Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance

UF Law Faculty Publications

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance ...


The National Flood Insurance Program At Fifty: How The Fifth Amendment Takings Doctrine Skews Federal Flood Policy, Christine A. Klein Jan 2019

The National Flood Insurance Program At Fifty: How The Fifth Amendment Takings Doctrine Skews Federal Flood Policy, Christine A. Klein

UF Law Faculty Publications

The National Flood Insurance Program (“NFIP”) of 1968 marked its fiftieth anniversary in 2018. Despite the program’s long history, few appreciate that the NFIP was never intended as a permanent federal subsidy for flood-prone properties along rivers and coastlines abandoned as commercially unviable by the private insurance industry. Instead, Congress provided flood insurance at below-cost rates as only an interim solution until state and local governments enacted permanent self-help land-use regulations that would restrict development in risky areas. By encouraging local governments to enact floodplain regulations, Congress intended to shift the costs of development in known flood areas back ...


Snapshot Of Trade Secret Developments, Elizabeth A. Rowe Jan 2019

Snapshot Of Trade Secret Developments, Elizabeth A. Rowe

UF Law Faculty Publications

As we enter the second year post enactment of the federal Defend Trade Secrets Act, this Paper presents a snapshot of developments to assess whether there appear to be any significant doctrinal changes afoot in trade secret litigation, both civil and criminal, during the past year. I take a qualitative look at some of the substantive rulings from 2017 to date. My assessment based on this limited sampling is that there do not appear to be any dramatic changes to the doctrinal development of the law to date.

The paper highlights some noteworthy civil cases from select federal and state ...


Equality, Equity, And Dignity, Nancy E. Dowd Jan 2019

Equality, Equity, And Dignity, Nancy E. Dowd

UF Law Faculty Publications

In this Essay I explore the definition and scope of children’s equality. I argue that equality includes equity and dignity. The meaning of each of these concepts is critical in imagining a deep, rich vision of equality, and in constructing policies to achieve that vision. This definition of equality creates affirmative rights, demands action to resolve structural discrimination that creates and sustains hierarchies among children, and requires affirmative support for children’s developmental equality.


Can Gilti + Beat = Globe?, Mindy Herzfeld Jan 2019

Can Gilti + Beat = Globe?, Mindy Herzfeld

UF Law Faculty Publications

The OECD is moving forward with consideration of a minimum tax as part of its solution to taxation of the digital economy. Part of a template for such a minimum tax may be the version enacted by the United States (US) in 2017 as an expansion of its Controlled Foreign Corporation (CFC) regime, known as Global Intangible Low Taxed Income (GILTI). But the OECD version will undoubtedly be different from the US iteration. It’s likely that it would also include some aspects of a minimum tax being proposed by other OECD members such as Germany and France, namely a ...


Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness, E. Lea Johnston Jan 2019

Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness, E. Lea Johnston

UF Law Faculty Publications

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as ...


Discordant Environmental Laws: Using Statutory Flexibility And Multi-Objective Optimization To Reconcile Conflicting Laws, Mary Jane Angelo Jan 2019

Discordant Environmental Laws: Using Statutory Flexibility And Multi-Objective Optimization To Reconcile Conflicting Laws, Mary Jane Angelo

UF Law Faculty Publications

The current morass of federal environmental laws has led to significant conflicts among statutes and the manner in which agencies implement them. In recent years, this quagmire of environmental laws has hindered the progress of a number of high-profile environmental regulatory programs and restoration projects. Neither the Courts nor legal scholars have developed approaches to resolving conflicts in a manner that harmonizes environmental statutes while at the same time protecting the most critical environmental resources. A standard methodology that optimizes the multiple objectives of environmental statutes and their implementing programs would greatly enhance decision-making and ensure that the most salient ...


Introduction: Early Childhood Symposium - Early Childhood Matters, Nancy E. Dowd, Teresa Drake Jan 2019

Introduction: Early Childhood Symposium - Early Childhood Matters, Nancy E. Dowd, Teresa Drake

UF Law Faculty Publications

Early childhood is a critical time in development when equality can be sustained, or inequality can take root. As a developmental period, it is marked by rapid neurological development, and thus the period from birth to three is a foundation for all future development. In early childhood, children’s critical need is developmental support through nurturing and responsive interactions in everyday activities and routines. Differences commonly emerge linked to the differences in children’s immediate ecologies. As the contributions to this symposium underscore, one of the major impacts on ecologies is income inequality, and in particular, poverty. While it is ...


Radical Aces: Building Resilience And Triggering Structural Change, Nancy E. Dowd Jan 2019

Radical Aces: Building Resilience And Triggering Structural Change, Nancy E. Dowd

UF Law Faculty Publications

Children’s developmental equality is critical to their opportunity and lifetime success. If we are to dismantle hierarchies among children, we must dismantle barriers placed in their way as well as insure affirmative support so that each child achieves their full developmental potential. The Adverse Childhood Experiences (ACEs) framework identifies factors that create hurdles, not necessarily insurmountable, to children’s development. A higher ACEs number translates into geometrically increased challenges for individual children. Identifying ACEs, if used simply to count obstacles for children, does not contribute to the goal of children’s equality. Indeed, counting ACEs may have the converse ...


Recreational Rights To The Dry Sand Beach In Florida: Property, Custom And Controversy, Alyson C. Flournoy, Thomas T. Ankersen, Sasha Alvarenga Jan 2019

Recreational Rights To The Dry Sand Beach In Florida: Property, Custom And Controversy, Alyson C. Flournoy, Thomas T. Ankersen, Sasha Alvarenga

UF Law Faculty Publications

At the close of the 2018 legislative session Florida Governor Rick Scott signed HB 631 into law. Included in the bill, which addressed a number of issues relating to actions for ejectment from real property, was an amendment to the Florida Community Planning Act entitled “Establishment of Recreational Customary Use.” The new statute immediately created a sandstorm of controversy as the media seized on what many in the public perceived to be a land grab over the public’s right to recreate on Florida’s sandy beaches. As it turns out, the story is considerably more nuanced, and neither the ...


“Essentially Black”: Legal Theory And The Morality Of Conscious Racial Identity, Kenneth B. Nunn Jan 2019

“Essentially Black”: Legal Theory And The Morality Of Conscious Racial Identity, Kenneth B. Nunn

UF Law Faculty Publications

In philosophy, essentialism involves the claim that everything that exists has a fundamental character or core set of features that makes it what it is. Although this idea developed out of Platonic notions of ideal forms, it has spread beyond philosophy into the social sciences and hard scientific disciplines like mathematics and biology. Since the advent of postmodernism, discussions around essentialism have become controversial. Adherents of postmodern theory argue that social categories, such as gender, race, and sexuality are socially constructed and that essentialist notions of identity, which suggest that identity is static, natural, and unchanging, are theoretically wrong. This ...


The Stranger-To-The-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, Lee-Ford Tritt Jan 2019

The Stranger-To-The-Marriage Doctrine: Judicial Construction Issues Post-Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

This Article tracks the evolution of inheritance law for adopted children and suggests that courts use construction approaches that worked in the context of a new understanding of the parent-child relationship as a guide to construing wills in the context of changing social and legal definitions of the martial relationship. In this regard, Part II offers a brief overview of pertinent construction doctrines. Next, Part III summarizes the history of inheritance law for adopted children. Finally, Part IV draws an analogy between the stranger-to-the-adoption doctrine and an approach to inheritance law for same-sex spouses that this Essay calls the "stranger-to-the-marriage ...


Fallen Woman (Re)Framed: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn Jan 2019

Fallen Woman (Re)Framed: Judge Jean Hortense Norris, New York City - 1912-1955, Mae C. Quinn

UF Law Faculty Publications

This Article seeks to surface and understand more than what is already known about Jean Hortense Norris as a lawyer, jurist, and feminist legal realist—as well as a woman for whom sex very much became part of her professional persona and work. This article analyzes the lack of legal protections provided to Norris and troubling nature of her removal from the bench given the evidence presented and standards applied. Finally, this Article seeks to provide further context for Jean Norris’s alleged misconduct charges to suggest that as a woman who dared to blur gender boundaries, embrace her professional ...


Wealth Accumulation At Elite Colleges, Endowment Taxation, And The Unlikely Story Of How Donald Trump Got One Thing Right, Mae C. Quinn Jan 2019

Wealth Accumulation At Elite Colleges, Endowment Taxation, And The Unlikely Story Of How Donald Trump Got One Thing Right, Mae C. Quinn

UF Law Faculty Publications

President Donald Trump has declared war on immigrants, diversity, and those who dare to dissent. Rooted in resentments about who people are, where they were born, and what they believe, these executive-led assaults are dangerous developments in the modern era. However, in the course of Trump's many retrograde tirades, he has somehow managed to get one thing right-too many elite private colleges in the United States, considered nonprofit entities, have amassed way too much wealth.
This Article recounts this unlikely story, including how the Trump Administration's 2017 endowment tax could work to advance diversity. The new endowment tax ...


A Requiem For Regulatory Takings: Reclaiming Eminent Domain For Constitutional Property Claims, Danaya C. Wright Jan 2019

A Requiem For Regulatory Takings: Reclaiming Eminent Domain For Constitutional Property Claims, Danaya C. Wright

UF Law Faculty Publications

For the past forty years, the United States Supreme Court has embraced the doctrine of regulatory takings, despite being unable to provide any coherent and reliable guidance on when a regulation goes so far as to require compensation. But Justice Thomas's admission in Murr v. Wisconsin (2017) that there is no real historical basis for the Court's regulatory takings jurisprudence offers a chance to reconsider the doctrine anew. Looking back to Justice Holmes's prophetic statement in Pennsylvania Coal Co. v. Mahon, that a regulation can go too far and require an exercise of eminent domain to sustain ...


Book Review: International Tax Policy: Between Competition And Cooperation, Yariv Brauner Jan 2019

Book Review: International Tax Policy: Between Competition And Cooperation, Yariv Brauner

UF Law Faculty Publications

The author reviews International Tax Policy: Between Competition and Cooperation. By Tsilly Dagan. Cambridge Tax Law Series, 2018.


Immigration, Adoption And Our National Identity, Shani M. King Jan 2019

Immigration, Adoption And Our National Identity, Shani M. King

UF Law Faculty Publications

In this Article, I tell the story of intercountry adoption. Our starting point is the beginning of the adoption process, with so-called “sending countries,” in which I explore the reasons that countries enter their children into the intercountry adoption market. We begin in the aftermath of World War II and continue until the present day. The story starts in Europe (specifically, in Germany, Greece, and Italy) and Japan. It then continues throughout the Korean War and the communist regime of Nicolae Ceauseacu, until present-day Russia and China. Next, I tell the story of receiving countries; I discuss the social, political ...


Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka Jan 2019

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

UF Law Faculty Publications

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose differen limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each another (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based ...


Reinvigorating Criminal Antitrust?, D. Daniel Sokol Jan 2019

Reinvigorating Criminal Antitrust?, D. Daniel Sokol

UF Law Faculty Publications

Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a ...


The Disenfranchisement Of Ex-Felons In Florida: A Brief History, Sarah A. Lewis Dec 2018

The Disenfranchisement Of Ex-Felons In Florida: A Brief History, Sarah A. Lewis

UF Law Faculty Publications

This paper will explore the origins of Florida’s felony disenfranchisement laws in the period from 1865 to 1968. The first part of this paper will review the Thirteenth Amendment to the U.S. Constitution, which ended slavery, and the Florida Black Code, which sought to return freedmen to a slavery-like status. The second part of the paper will explore Florida’s reaction to the passage of the Reconstruction Act of 1867, which conditioned reentrance into the Union on the writing of new state constitutions by former Confederate states extending the right to vote to all males regardless of race ...


Who Locked Us Up? Examining The Social Meaning Of Black Punitiveness, Darren Lenard Hutchinson Jun 2018

Who Locked Us Up? Examining The Social Meaning Of Black Punitiveness, Darren Lenard Hutchinson

UF Law Faculty Publications

Mass incarceration has received extensive analysis in scholarly and political debates. Beginning in the 1970s, states and the federal government adopted tougher sentencing and police practices that responded to rising punitive sentiment among the general public. Many scholars have argued that U.S. criminal law and enforcement subordinate people of color by denying them political, social, and economic well-being. The harmful and disparate racial impact of U.S. crime policy mirrors historical patterns that emerged during slavery, Reconstruction, and Jim Crow. In his Pulitzer Prize-winning book Locking Up Our Own: Crime and Punishment in Black America, James Forman, Jr. demonstrates ...


The New Law Of The Child, Anne C. Dailey, Laura A. Rosenbury Apr 2018

The New Law Of The Child, Anne C. Dailey, Laura A. Rosenbury

UF Law Faculty Publications

This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The existing legal regime, which we term the “authorities framework,” focuses too narrowly on state and parental control over children, reducing children’s interests to those of dependency and the attainment of autonomy. In place of this limited focus, we envision a “new law of the child” that promotes a broader range of children’s present and future interests, including children’s interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity ...


Unframing Legal Reasoning: A Cyclical Theory Of Legal Evolution, Larry A. Dimatteo Apr 2018

Unframing Legal Reasoning: A Cyclical Theory Of Legal Evolution, Larry A. Dimatteo

UF Law Faculty Publications

This article draws from legal history to inform a part of legal theory. The legal history examination focuses on two theories of legal development - Henry Sumner Maine's "progression thesis" and Nathan Isaacs's "cycle theory." After examining these two theories of legal development, the analysis shifts to how legal history informs theories of legal reasoning. There are numerous long-standing debates on how "law" should be interpreted. These debates are replicated in the question of how "contracts" should be interpreted. Contract law and contract interpretation will be the focus in examining how history informs legal theory, and more specifically, legal ...


2018 Erwin N. Griswold Lecture Before The American College Of Tax Counsel: Tax Policy Elegy, Martin J. Mcmahon Jr. Jan 2018

2018 Erwin N. Griswold Lecture Before The American College Of Tax Counsel: Tax Policy Elegy, Martin J. Mcmahon Jr.

UF Law Faculty Publications

For over four decades there have been unrelenting calls to make the tax code “fair, simple, and efficient.” But despite nine major tax acts between 1969 and 2003, along with many less extensive tax acts, the refrain for a “fair, simple, and efficient” tax code has continued to be heard. This continuing plea is not surprising, because over the decades the tax system has evolved to ask the highest income earners to pay less in taxes, become ever more complex, and eschewed “efficiency” in favor of the allowance of an ever-increasing number of tax preferences. Tax act after tax act ...


Decarbonizing Light-Duty Vehicles, Amy L. Stein, Joshua P. Fershee Jan 2018

Decarbonizing Light-Duty Vehicles, Amy L. Stein, Joshua P. Fershee

UF Law Faculty Publications

Reducing the United States’ greenhouse gas emissions by at least 80% from 1990 levels by 2050 will require multiple legal pathways for changing its transportation fuel sources. The Deep Decarbonization Pathways Project (DDPP) authors characterize transforming the transportation system as part of a third pillar of fundamental changes required in the U.S. energy system: “fuel switching of end uses to electricity and other low-carbon supplies.” The goal is to shift 80%-95% of the miles driven from gasoline to energy sources like electricity and hydrogen. Relying upon the DDPP analysis, this Article, excerpted from Michael B. Gerrard & John C ...


What Did They Know And When Did They Know It? Pretesting As A Means Setting A Baseline For Assessing Learning Outcomes, Jeffrey L. Harrison Jan 2018

What Did They Know And When Did They Know It? Pretesting As A Means Setting A Baseline For Assessing Learning Outcomes, Jeffrey L. Harrison

UF Law Faculty Publications

Are legal rules intuitive or, at least, consistent with common sense? In this study, 260 law students at five law schools who had not taken contract law, were presented with eight questions based on specific contracts cases or common contracts issues. They were asked what they felt was the fair or right answer to each question and to formulate the rule they would apply. The purposes of the study were to 1) determine whether contract law is what the untrained person believes it is or should be and 2) experiment with a strategy of pretesting to determine what topics within ...