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Articles 1 - 30 of 1170
Full-Text Articles in Law
Imperfect Insanity And Diminished Responsibility, Lea Johnston
Imperfect Insanity And Diminished Responsibility, Lea Johnston
UF Law Faculty Publications
Insanity’s status as an all-or-nothing excuse results in the disproportionate punishment of individuals whose mental disorders significantly impaired, but did not obliterate, their capacities for criminal responsibility. Prohibiting the trier of fact from considering impairment that does not meet the narrow definition of insanity contradicts commonly held intuitions about mental abnormality and gradations of responsibility. It results in systemic over-punishment, juror frustration, and, at times, arbitrary verdicts as triers of fact attempt to better apportion liability to blameworthiness.
This Article proposes a generic partial excuse of Diminished Responsibility from Mental Disability, to be asserted as an affirmative defense at the …
Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol
Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol
UF Law Faculty Publications
Woke means “the belief there are systemic injustices in American society and the need to address them.” Ryan Newman, General Counsel to Governor of Florida.
Stopping wokeness is to combat the belief there are systemic injustices in American society which, true to form, does sound a lot like the opposite of being awake, and that is to say, totally asleep. Alex Wagner.
[B]y condemning the word “Woke” the establishment is not only attacking African American language. It also [is] disparaging the whole concept of being “awake” which I believe is one of the essential elements of moral and religious consciousness. …
The Multitudinous Racial Harms Caused By Florida's Stop Woke And Anti-Dei Legislation, Katheryn Russell-Brown
The Multitudinous Racial Harms Caused By Florida's Stop Woke And Anti-Dei Legislation, Katheryn Russell-Brown
UF Law Faculty Publications
Since 2021, Florida has passed legislation that radically redefines how educators address race-related topics in the university classroom. Two laws in particular, HB 7 (Stop WOKE Act) and HB 999, which outlaws DEI programs at Florida universities, have led the charge. The goals of this Article are three-fold. First, to demonstrate how HB 7 and HB 999 have created a devasting and powerful educational force in Florida, a force that diminishes certain forms of racial discussion and inquiry in the college classroom. Second, to show the direct link between these laws and antebellum anti-literacy laws. The historical moments that separate …
Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf
Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf
UF Law Faculty Publications
In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, …
Justice Delayed: Government Officials' Authority To Wind Down Constitutional Violations, Neil H. Buchanan, Michael C. Dorf
Justice Delayed: Government Officials' Authority To Wind Down Constitutional Violations, Neil H. Buchanan, Michael C. Dorf
UF Law Faculty Publications
Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now.
Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold injunctive relief, but that rationale does not justify …
On Fires, Floods, And Federalism, Andrew Hammond
On Fires, Floods, And Federalism, Andrew Hammond
UF Law Faculty Publications
In the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more …
Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister
Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister
UF Law Faculty Publications
Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …
The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea
The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea
UF Law Faculty Publications
This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its …
Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke
Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke
UF Law Faculty Publications
Employment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reform. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools they need to resolve recurring, real-world disputes.
This article offers a new, comprehensive historical account that exposes the formalistic and anti …
Fostering Faith: Religion In The History Of Family Policing, Elizabeth D. Katz
Fostering Faith: Religion In The History Of Family Policing, Elizabeth D. Katz
UF Law Faculty Publications
Each year in the United States, approximately 700,000 children live in foster care. Many of these children are placed in religiously oriented homes recruited and overseen by faith-based agencies (FBAs). This arrangement—as well as the scope and operation of child welfare services more broadly—is at a crucial moment of reckoning. Scholars and advocates focused on children’s rights and family integrity maintain that the child welfare system, increasingly termed the “family policing system,” harms children, families, and communities through unnecessary and racist child removal that is partly motivated by perverse financial incentives. Some call for abolition. Meanwhile, in a largely separate …
Everything You Want: The Paradox Of Customized Intellectual Property Regimes, Derek E. Bambauer
Everything You Want: The Paradox Of Customized Intellectual Property Regimes, Derek E. Bambauer
UF Law Faculty Publications
Special interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, Audio Home Recording Act, and Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of …
How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster
How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster
UF Law Faculty Publications
Investigative reporters and the #MeToo movement exposed the widespread use of non-disclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by …
Bottom-Rung Appeals, Merritt E. Mcalister
Bottom-Rung Appeals, Merritt E. Mcalister
UF Law Faculty Publications
There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …
Privacy Implications Of Central Bank Digital Currency, Jiaying Jiang
Privacy Implications Of Central Bank Digital Currency, Jiaying Jiang
UF Law Faculty Publications
One hundred five countries, representing over 95 percent of global GDP, are exploring central bank digital currencies (CBDCs), a new form of digital money that is different from privately issued cryptocurrencies and stablecoins. As central banks worldwide grapple with CBDC design options, privacy has become a critical feature and concern. Many central banks, government agencies, NGOs, think tanks, and even the general public have already addressed the importance of privacy and called for privacy in CBDC systems. Some economists, computer scientists, engineers, and legal scholars have already moved forward to design a privacy-preserving CBDC.
However, when addressing the importance and …
Diminished Criminal Responsibility: A Multinational Comparative Review, Lea Johnston, Kendall D. Runyan, Fernando José Silva, Franscisco Maldonado Fuentes
Diminished Criminal Responsibility: A Multinational Comparative Review, Lea Johnston, Kendall D. Runyan, Fernando José Silva, Franscisco Maldonado Fuentes
UF Law Faculty Publications
This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe—Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey. Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding. It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility. This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile …
Delaware Law For Non-Corporate Entities: A Commentary, Peter Molk
Delaware Law For Non-Corporate Entities: A Commentary, Peter Molk
UF Law Faculty Publications
Robert Rhee’s Article, The Irrelevance of Delaware Corporate Law, poses provocative questions about why Delaware dominates the market for corporate law given the apparent irrelevance of state incorporation choice for companies’ market valuations. He shows, first, that publicly traded companies incorporated in Delaware have similar valuations to companies incorporated in other states over time, and second, that market actors do not exhibit a preference to reincorporate existing firms in Delaware.
Rhee analyzes exclusively the realm of publicly traded corporations, which is understandable given that his analysis is necessarily limited to publicly available data. Publicly traded corporations are undeniably economically significant, …
Bespoke, Tailored, And Off-The-Rack Bankruptcy: A Response To Professor Coordes's 'Bespoke Bankruptcy', Christopher D. Hampson
Bespoke, Tailored, And Off-The-Rack Bankruptcy: A Response To Professor Coordes's 'Bespoke Bankruptcy', Christopher D. Hampson
UF Law Faculty Publications
Toward the end of every semester that I teach bankruptcy, I let my students vote on which “non-traditional” insolvency regimes they would like to study, including municipal bankruptcy, sovereign bankruptcy, and financial institutions. What I am really trying to do is convey to the students that the default procedures and substantive rules in Chapters 7 and 11 of the U.S. Bankruptcy Code do not apply to all types of enterprises.
Dead Infants And Taking The Fifth, Tracey Maclin
Dead Infants And Taking The Fifth, Tracey Maclin
UF Law Faculty Publications
This article is part of a symposium dedicated to the life and scholarship of Professor Sherry Colb. Professor Colb was a brilliant legal scholar and an admired teacher. Professor Colb and I first bonded over the fact that we both taught Constitutional Criminal Procedure.
In a 2013 blog, Professor Colb took a limited view of the Fifth Amendment’s Self-Incrimination Clause. She contended that if official brutality and false confessions could be eliminated, the rationale for giving people the right to refuse to provide truthful information about their own actions in open court would diminish substantially.
As someone who supports a …
Weaponizing Proof Of Harm In First Amendment Cases: When Scientific Evidence And Deference To The Views Of Professional Associations Collide In The Battle Against Conversion Therapy, Clay Calvert
UF Law Faculty Publications
This Article uses the U.S. Court of Appeals for the Eleventh Circuit’s divided decision in Otto v. City of Boca Raton in late 2020 as a springboard for examining battles in First Amendment jurisprudence over proof of causation of harm and the level of deference owed to the judgments of learned societies. A two-judge majority held in Otto that a pair of local ordinances banning speechbased conversion therapy on minors violated the First Amendment, with those measures failing the rigorous strict scrutiny standard of review. Crucial to the majority’s ruling was its conclusion that insufficient evidence exists that conversion therapy—also …
Bottom-Rung Appeals, Merritt E. Mcalister
Bottom-Rung Appeals, Merritt E. Mcalister
UF Law Faculty Publications
There are haves and have-nots in the federal appellate courts, and the haves get more attention. For decades the courts have used a triage regime where they distribute judicial attention selectively: some appeals receive a lot of judicial attention, some appeals receive barely any. What this work unearths is that this triage system produces demonstrably unequal results depending on the circuit handling the appeal and whether the appellant has counsel or not. Together, these two factors produce dramatic disparities: in one circuit, for example, an unrepresented appellant receives, on average, a decision less than a tenth the length of a …
Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister
Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister
UF Law Faculty Publications
Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …
Feasibility Assessment Of Special Management Areas To Enhance Recreational Fisheries And Habitat, Savanna Barry, Thomas T. Ankersen, Edward Camp, Mark Clark, Lauren Griffiths, Micheal Allen
Feasibility Assessment Of Special Management Areas To Enhance Recreational Fisheries And Habitat, Savanna Barry, Thomas T. Ankersen, Edward Camp, Mark Clark, Lauren Griffiths, Micheal Allen
UF Law Faculty Publications
Nearshore recreational fisheries provide tremendous value to the Florida economy. These fisheries are dependent on the availability of high-quality habitat, and sound fisheries management. Habitat can be degraded by several factors, including damage to seagrass flats by propellers of power boats operating in shallow waters (prop scarring). The current fisheries management framework employs regulations limiting harvest by season, fish length, and bag limit (number of fish harvestable per angler per day). Regulations often vary due to regional differences in fishery stocks and population dynamics.
Our team’s overall goal in undertaking this work was to assess the feasibility of creating special …
Corporations As Private Regulators, Wentong Zheng
Corporations As Private Regulators, Wentong Zheng
UF Law Faculty Publications
The growing trend of corporations imposing restrictions on suppliers, contractors, and customers beyond the requirements of existing laws requires rethinking the nature and impact of corporations' private regulatory power. This trend, which this Article refers to as "Corporations as Private Regulators" (CPR), represents a paradigmatic shift in how corporations participate in the making of public policies. This Article conceptualizes the corporate CPR power as the exercise of a right of refusal to deal with counterparties. This right of refusal could be theorized as a new form of property right, whose allocation has important implications for both rights and wealth. The …
Rebuilding The Federal Circuit Courts, Merritt E. Mcalister
Rebuilding The Federal Circuit Courts, Merritt E. Mcalister
UF Law Faculty Publications
The conversation about Supreme Court reform—as important as it is—has obscured another, equally important conversation: the need for lower federal court reform. The U.S. Courts of Appeals have not seen their ranks grow in over three decades. Even then, those additions were stopgap measures built on an appellate triage system that had outsourced much of its work to nonjudicial decision-makers (central judicial staff and law clerks). Those changes born of necessity have now become core features of the federal appellate system, which distributes judicial resources—including oral argument and judicial scrutiny—to a select few. This Article begins to reimagine the courts …
Policing The College Campus: History, Race, And Law, Katheryn Russell-Brown, Vanessa Miller
Policing The College Campus: History, Race, And Law, Katheryn Russell-Brown, Vanessa Miller
UF Law Faculty Publications
The structure, impact, and historical roots of campus policing on the American college campus receives little academic attention. In fact, campus policing is often overlooked in legal analyses and research studies, including its relationship to race. Campus policing and race deserves a critical assessment from legal scholars because race is fixed to the ways the criminal-legal system presents itself on campus. The racialized implications of policing on campus are rooted in historical social and legal contexts that still exist today. However, the lack of research on campus policing is not surprising. American colleges and universities have successfully marketed themselves as …
Bankruptcy & The Benefit Corporation, Christopher D. Hampson
Bankruptcy & The Benefit Corporation, Christopher D. Hampson
UF Law Faculty Publications
As pressure grows for money-making businesses to prioritize social responsibility, the benefit corporation - a recent innovation in corporate governance - promises to require the directors of socially minded businesses to balance public benefit with shareholder interests. But will that promise survive the crucible of financial distress? While most discussions of the benefit corporation give only passing treatment to insolvency (or ignore it altogether), this Article provides the first complete analysis of how bankruptcy principles would apply to benefit corporations, informed by the practical context of out-of-court workouts and negotiations that take place in the shadow of the bankruptcy laws. …
Information As Power: Democratizing Environmental Data, Annie Brett
Information As Power: Democratizing Environmental Data, Annie Brett
UF Law Faculty Publications
Environmental data systems have largely escaped scrutiny in the past decades. But these systems are the foundations for evaluating environmental priorities, making management decisions, and deciding which perspectives to value. Information is the foundation of effective regulation. The decisions regulators make about gathering, assimilating, and sharing information are, in many cases, determinative of the outcomes they reach. This is certainly true in the case of the environment.
This paper looks at how current environmental regulation has created data systems that undermine scientific legitimacy and systematically prevent stakeholder participation in environmental decision-making. These data systems concentrate power within federal and state …
Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahy
Psychosis, Heat Of Passion, And Diminished Responsibility, E. Lea Johnston, Vincent T. Leahy
UF Law Faculty Publications
This Article calls for the creation of a generic partial excuse for diminished rationality from mental disability. Currently, most jurisdictions recognize only one partial excuse: the common law heat-of-passion defense. Empirical research demonstrates that populations with delusions experience similar impairments to decision-making capacities as people confronted with sudden, objectively adequate provocation. Yet, current law affords significant mitigation only to the latter group, which only applies in murder cases. Adoption of the Model Penal Code’s “extreme mental or emotional disturbance” (EMED) defense could extend mitigation to other forms of diminished responsibility. However, examination of jurisdictions’ adoption and utilization of the EMED …
First Amendment Battles Over-Anti-Deplatforming Statutes: Examining Miami Herald Publishing Co. V. Tornillo's Relevance For Today's Online Social Media Platform Cases, Clay Calvert
UF Law Faculty Publications
Florida adopted a statute in 2021 barring large social media sites from deplatforming-removing from their sites-candidates running for state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms' First Amendment speech rights. A central issue in both NetChoice, LLC v. Moody (targeting Florida's statute) and NetChoice, LLC v. Paxton (attacking Texas's law) is the significance of the U.S. Supreme Court's 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down …
Weaponizing Proof Of Harm In First Amendment Cases: When Scientific Evidence And Deference To The Views Of Professional Associations Collide In The Battle Against Conversion Therapy, Clay Calvert
UF Law Faculty Publications
This Article uses the U.S. Court of Appeals for the Eleventh Circuit’s divided decision in Otto v. City of Boca Raton in late 2020 as a springboard for examining battles in First Amendment jurisprudence over proof of causation of harm and the level of deference owed to the judgments of learned societies. A two-judge majority held in Otto that a pair of local ordinances banning speechbased conversion therapy on minors violated the First Amendment, with those measures failing the rigorous strict scrutiny standard of review. Crucial to the majority’s ruling was its conclusion that insufficient evidence exists that conversion therapy—also …