Law Commons^™

Afterword – Straightness As Property: Back To The Future-Law And Status In The 21st Century, Symposium: Liberalism And Property Rights, Berta E. Hernández-Truyol, Shelbi D. Day

UF Law Faculty Publications

As is evident from the other works in this Symposium, throughout history in both the United States and the greater Western World, status-based exclusion of individuals and groups from property rights has been central to the existence of political and social hierarchies. Specifically, exclusion based on status — whether it be nationality, culture, race, sex or sexuality — has plagued our history and has been integral in the formation and development of both constitutional and property law regimes. Consequently, both regimes are at best uneven in the grant and distribution of rights and benefits.

A forward-looking examination of the link …

Puerto Rico: Cultural Nation, American Colony, Pedro A. Malavet

UF Law Faculty Publications

As a matter of law, Puerto Rico has been a colony for an uninterrupted period of over five hundred years. In modern times, colonialism—the status of a polity with a definable territory that lacks sovereignty because legal/political authority is exercised by a peoples distinguishable from the inhabitants of the colonized region—is the only legal status that the isla (island) has known. This Article posits that Puerto Rico's colonial status—particularly its intrinsic legal and social constructs of second-class citizenship for Puerto Ricans—is incompatible with contemporary law or a sensible theory of justice and morality.

Puerto Ricans, as United States citizens by …

Teaching Contracts From A Socioeconomic Perspective, Jeffrey L. Harrison

UF Law Faculty Publications

This essay begins with a brief discussion of what socioeconomics is. In this section I also address whether one must be well versed in conventional economics in order to apply a socioeconomic perspective. I then discuss the basic themes that are present throughout my contracts class that stem from my interest in socioeconomics. Underlying these themes is the more fundamental goal of devising methodologies for assessing the quality of contracts. By quality, I mean something more and perhaps more subtle than whether the parties have conformed to all the formal requirements. Instead, I encourage students to examine whether all of …

Breaking The Glass Slipper: Reflections On The Self-Employment Tax, Patricia E. Dilley

UF Law Faculty Publications

Lawmakers and their staffs, in drafting tax legislation, often resemble Prince Charming looking for Cinderella with that glass slipper in hand -- rather than start from scratch and draft a completely new tax provision. It is frequently easier, faster, and more reassuring to taxpayers and tax practitioners to use an existing statute or approach and simply amend it slightly to make it fit the need of the new provision. However, problems can arise from this approach.

In the original Grimm Brothers' version of the Cinderella story, for example, the wicked stepsisters were each so anxious to be the chosen one …

Internet Casinos: A Sure Bet For Money Laundering, Jon L. Mills

UF Law Faculty Publications

Since the end of World War II, American society has seen the emergence of technology promising to make life easier, better and longer lasting. The more recent explosion of the Internet is fulfilling the dreams of the high-tech pundits as it provides global real-time communication links and makes the world's knowledge universally available. Privacy concerns surrounding the develop-ment of the Internet have mounted, and in response, service providers and web site operators have enabled web users to conduct transactions in nearly complete anonymity. While anonymity respects individual privacy, anonymity also facilitates criminal activities needing secrecy. One such activity is money …

Law, Culture, And Equality - Human Rights' Influence On Domestic Norms: The Case Of Women In The Americas, Berta E. Hernández-Truyol

UF Law Faculty Publications

This essay originated with a panel on Alternatives to the Regular Courts that took place during the first Legal and Policy Issues in the Americas conference sponsored by the University of Florida Levin College of Law. Some of the possible alternatives to the courts, in the trade field, that have been discussed include mediation, arbitration, constitutional courts and binational dispute panels. This essay reflects upon another alternative to domestic courts that progressively and increasingly is also being invoked in the trade context: international and regional human rights regimes.

I specifically will review the Inter-American Human Rights System to ascertain the …

Taking Public Rights Private: The Rhetoric And Reality Of Social Security Privatization, Patricia E. Dilley

UF Law Faculty Publications

This Article explores the foundations of the Social Security privatization debate. What is frequently portrayed as a numbers problem to which a "correct" answer can be found is in fact an ideological and political argument about wealth building versus direct income support and about the reality and security of public entitlement as opposed to private property rights. Efforts to use the idea of private property as the basis of rights in the context of the Social Security system and other non-retirement social welfare programs have proven problematic. This Article suggests that Social Security, far from being a quaint, retrograde souvenir …

Unbending Gender: Why Family And Work Conflict And What To Do About It (Panel Two: Who's Minding The Baby?), Nancy E. Dowd, Adrienne Davis, Marion Crain, Bonnie Dill, Catherine Ross, Joan Williams

UF Law Faculty Publications

A central characteristic of our current gender arrangements is that they pit ideal worker women against marginalized caregiver women in a series of patterned conflicts I call gender wars. One version of these are the mommy wars that we see often covered in the press between employed mothers and mothers at home. Employed mothers at times participate in the belittlement commonly felt by homemakers. Also mothers at home, I think, at times participate in the guilt-tripping that's often felt by mothers who are employed. These gender wars are a central but little understood characteristic of the gender system that grew …

Literature And The Arts As Antisubordination Praxis: Latcrit Theory And Cultural Production: The Confessions Of An Accidental Crit, Pedro A. Malavet

UF Law Faculty Publications

I attend LatCrit conferences to be educated on what I regard as the most exciting legal scholarship being produced today. Therefore, I naturally jumped at the opportunity to help organize the Fourth Annual LatCrit Conference and to chair one of its Plenary Panels. I have penned this Essay for the purpose not only of joining Critical Race Theory ("CRT") discourse, but also to create a recorded history of LatCrit travels.

In Part I of this Essay, I will describe the process that led the Planning Committee to include the Literature and Arts as Antisubordination Praxis: LatCrit Theory and Cultural Production …

“Gay Rights” For “Gay Whites”?: Race, Sexual Identity, And Equal Protection Discourse, Darren Lenard Hutchinson

UF Law Faculty Publications

While the resolution of the problem of gay and lesbian inequality will ultimately turn on a host of social, legal, political, and ideological variables, this Article argues that the success or failure of efforts to achieve legal equality for gays, lesbians, bisexuals, and transgendered individuals will depend in large part on how scholars and activists in this field address questions of racial identity and racial subjugation. Commonly, these scholars and activists currently discuss race by use of analogies between “racial discrimination” and “sexual orientation discrimination,” or between “people of color” and “gays and lesbians.” On one level, the “comparative approach” …

Apology And Organizations: Exploring An Example From Medical Practice, Jonathan R. Cohen

UF Law Faculty Publications

In this Article, I focus on injuries committed by members of organizations, such as corporations, and examine distinct issues raised by apology in the organizational setting. In particular, I consider: (i) the process of learning to prevent future errors; (ii) the divergent interests stemming from principal-agent tensions in employment, risk preferences and sources of insurance; (iii) the non-pecuniary benefits to corporate morale, productivity and reputation; (iv) the standing and scope of apologies; and (v) the articulation of policies toward injuries to others.

Social Security Reform: Risks, Returns, And Race, Dorothy A. Brown, Karen C. Burke, Grayson M.P. Mccouch

UF Law Faculty Publications

The debate over social security reform has far-reaching implications for the economic well-being of blacks and other minority groups. In this article, we examine how blacks have fared under the existing system, and then consider the likely consequences of moving toward a privatized system. Specifically, we consider the claim, recently advanced by some privatizers, that blacks receive an especially "bad deal" under the existing system and would be better off under a privatized system. We find that, for blacks as a group, this claim tends to overstate both the shortcomings of the existing system and the advantages of privatization. Furthermore, …

Setting A New Standard For Public Education: Revision 6 Increases The Duty Of The State To Make ‘Adequate Provision’ For Florida Schools, Jon L. Mills, Timothy Mclendon

UF Law Faculty Publications

Among the nine revisions proposed to Florida voters by the Constitution Revision Commission in 1998, Revision 6 fundamentally enhanced Florida's responsibility for public education. Revision 6 amended Article IX, Section 1, of the Florida Constitution, which sets forth the State's duty to provide for public education. Entitled “PUBLIC EDUCATION OF CHILDREN,” Revision 6 makes a declaration of the relative importance of education to the people of Florida, and describes as “paramount” the duty of the state to adequately provide for education. Revision 6 goes on to detail and raise the constitutional standard for what constitutes “adequate provision” for public education, …

The "Darden Dilemma": Should African Americans Prosecute Crimes?, Kenneth B. Nunn

UF Law Faculty Publications

Christopher Darden (prosecutor in the O.J. Simpson trial) has come to epitomize the burdens that African American prosecutors face as they perform their professional tasks. Moreover, the "Darden Dilemma" has become a generic term for the anguish that these prosecutors endure as they negotiate between competing allegiances to the African American community and the State. Much has been written about the sense of isolation that African American prosecutors feel when confronting the conflict between their roles as prosecutors and their obligations to the African American community. This article argues that African Americans should not prosecute crimes in the current criminal …

The Criminal Defense Lawyer's Fiduciary Duty To Clients With Mental Disability, Christopher Slobogin, Amy R. Mashburn

UF Law Faculty Publications

This Article argues that the defense attorney has a multifaceted fiduciary duty toward the client with mental disability. That duty requires, first and foremost, respect for the autonomy of the client. The lawyer shows that respect not only by heeding the wishes of the competent client but by refusing to heed the wishes of the incompetent client. A coherent approach to the competency construct is therefore important. Following the lead of Professor Bonnie, this Article has broken competency into two components: assistance competency and decisional competency. It has defined the former concept in traditional terms, as an understanding of the …

Taking Regulatory Takings Personally: The Perils Of (Mis)Reasoning By Analogy, Michael Allan Wolf

UF Law Faculty Publications

This Article includes four parts: (1) a defense of the real property/personal property distinction for a post-deconstructionist legal world, (2) a review of difficulties common law courts have encountered when applying real property concepts to disputes over money and personalty, (3) an exploration of the "rhetorical mismatch" typified by Justice Sandra Day O'Connor's opinion in Eastern Enterprises, and (4) a respectful request for judges to resist the temptation to collapse categories and instead to maintain, or even erect, meaningful distinctions.

Mirror, Mirror On The Wall: A Vision For The Future, Claire M. Germain

UF Law Faculty Publications

The law library community has been talking about how to ensure permanent public access to primary legal information, both US (state and federal), as well as international and foreign legal information. Web Mirror Sites present a new way to disseminate and preserve digital legal information, and offer a security backup for issuing agencies, an increasingly important factor in the new cyberspace world prone to computer hacking.

Silencing John Doe: Defamation & Discourse In Cyberspace, Lyrissa Barnett Lidsky

UF Law Faculty Publications

John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons-some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat these suits …

Gender Politics In Global Governance, Berta E. Hernández-Truyol

UF Law Faculty Publications

Prof. Hernández-Truyol reviews the book Gender Politics in Global Governance from editors Mary K. Meyer and Elisabeth Prügl. Given the emergence of multilateral institutions in this century, the mobilization of women against "male supremacy" has taken an internationalist turn; it seeks to shape "the agendas of international organizations and the normative practices of global governance." In an effort to understand and analyze this movement and its impact, the editors have compiled a volume drawing new research together exploring gender politics in global governance that is also "attentive to historical and contemporary modes of women's organizing from the local to the …

Foreword: Toward A Multicultural Theory Of Property Rights, Danaya C. Wright

UF Law Faculty Publications

This panel, sponsored by the Minority group and Property Sections of the AALS for the January, 2000 annual meeting, was composed of an exciting group of scholars critically analyzing traditional theories of property and current distribution of resources. The panel, entitled "Reviewing the Legacy of Liberalism: Life, Liberty, and the Pursuit of Happiness -- Linking Property to Rights," challenged traditional notions of property rights, from a discussion of the gender implications of African property law, to a critique of traditional analyses of Johnson v. M'Intosh, to property as heteronormative. Because the articles provide so much rich and thought-provoking material, …

The Undue Burden: Parental Notification Requirements For Publicly Funded Contraception, Stephanie Bornstein

UF Law Faculty Publications

This article analyzes the legal impact of legislative proposals in 1998 and 1999 to require parental notification for minors seeking publicly funded contraception. Part I explores the history of Title X and some of its amendments, the HHS interpretive “squeal rule,” and the federal courts' rejection of the HHS rule based on the congressional intent behind Title X. Part II focuses on the Parental Notification Act of 1998 and its likelihood for success against a constitutional challenge, based on an analysis of precedent on parental consent requirements for contraception and abortion. Part III discusses the change in the legislative and …

Latindia Ii -- Latinas/Os, Natives, And Mestizajes -- A Latcrit Navigation Of Nuevos Mundos, Nuevas Fronteras, And Nuevas Teorias, Berta E. Hernández-Truyol

UF Law Faculty Publications

This Essay is a journey that will elucidate a personal exploration of LatCrit's trinitarian goals of engagement of identity interrogations, community building, and self-critical analysis. It will reflect personal travels and travails, bumps in the road and epiphanies, theory and practice. The plot for these musings is a cultural voyage in which this viajera embarks to live and comprehend the meaning of mestizaje 5 in a personal quest for identity location; the stage is LatCrit IV.

My interrelated trips are chartered in three parts. Part I, Nuevos Mundos. Traveling LatCrit Community, presents the historical background of, contexts for, and evolutions …

Nativism, Terrorism, And Human Rights -- The Global Wrongs Of Reno V. American-Arab Anti-Discrimination Committee, Berta E. Hernández-Truyol

UF Law Faculty Publications

The American-Arab Anti-Discrimination Committee decision (American-Arab or AADC) is the most recent U.S. Supreme Court pronouncement regarding the intersection of immigration regulations and fundamental constitutional rights enjoyed by foreign subjects present within the United States. In American-Arab, the U.S. government commenced deportation proceedings against two legal permanent residents and six temporary visa holders on the basis of an ideological bias: the plaintiffs were alleged to be members of the Popular Front for the Liberation of Palestine (Popular Front or PFLP) -- a charge all the plaintiffs denied. The Supreme Court's ruling endorsing the legality of the government's …

Pipes, Wires, And Bicycles: Rails-To-Trails, Utility Licenses, And The Shifting Scope Of Railroad Easements From The Nineteenth To The Twenty-First Centuries, Danaya C. Wright, Jeffrey M. Hester

UF Law Faculty Publications

This Article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This Article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, we analyze the scope of the easement limited for railroad purposes. We then discuss the role abandonment plays in affecting the rights of third party users of these corridors as well as successor trail owners. We conclude …

A Theory Of Legal Strategy, Lynn M. Lopucki, Walter O. Weyrauch

UF Law Faculty Publications

By the conventional view, case outcomes are largely the product of courts' application of law to facts. Even when courts do not generate outcomes in this manner, prevailing legal theory casts them as the arbiters of those outcomes. In a competing strategic view, lawyers and parties construct legal outcomes in what amounts to a contest of skill. Though the latter view better explains the process, no theory has yet been propounded as to how lawyers can replace judges as arbiters. This article propounds such a theory. It classifies legal strategies into three types: those that require willing acceptance by judges, …

Restoration Rx: An Evaluation And Prescription, Alyson C. Flournoy

UF Law Faculty Publications

In this introductory article, I explore what ethics, science, economics, and law suggest about the value of restoration. These themes -- the questions and challenges posed by ethics, science, economics, and law -- resonate throughout the Articles in this Symposium. Drawing on the presentations given at the Symposium and the literature on environmental restoration, this article reviews some of the major questions that science and ethics pose for restoration, as well as the challenges posed by the economic and legal contexts within which environmental restoration occurs. After a brief comment on the definition of restoration, this article addresses the challenges …

Recent Irs Letter Ruling Increases Opportunities For Exempt Organizations To Use Llcs, Monica Gianni

UF Law Faculty Publications

Monica Gianni discusses how the IRS’s analysis of a private operating foundation using an LLC in LTR 9834033 indicates the IRS’s approach to LLCs with exempt organization members.

Agency, Equality, And Antidiscrimination Law, Tracy E. Higgins, Laura A. Rosenbury

UF Law Faculty Publications

Some commentators, perhaps a minority, have argued that the Equal Protection Clause should be read to require the use of race-conscious policies when necessary to eradicate or remedy the most serious consequences of racial inequality. Others have argued that such policies, though not required, should be permitted when duly adopted by the majority of the populace to promote the interests of an historically oppressed minority. Still others, including now a majority of the Supreme Court, take the view that the Constitution forbids virtually all explicit uses of race by the state.

In this Essay, we do not enter this debate …

Culture, Nationhood, And The Human Rights Ideal, Berta E. Hernández-Truyol, Sharon E. Rush

UF Law Faculty Publications

This paper was written as a part of a Symposium on Culture, Nation, and LatCrit (Latina/o Communities and Critical Race) Theory and focuses on the concept of voice and silence. Part I locates the works in the axis of silence and power. Part II explores how critical theory and international human rights norms can be used to develop a methodology to analyze and detect the exclusion or silencing of voices. A paradigm is developed that, by internationalizing voice, serves as a useful tool to explore power-based silencing. In Part III, the article illustrates how the proposed paradigm can focus the …

Building Bridges Iv: Of Cultures, Colors, And Clashes--Capturing The International In Delgado's Chronicles, Berta E. Hernández-Truyol

UF Law Faculty Publications

Sex, race, gender, sexuality, color, religion, language, nationality, ethnicity, culture, poverty - socially constructed categories, social tropes that relegate "others" to subordinated positions in the varied and various cultural and economic marketplaces of both global and local societies. Richard Delgado's transformational work engages all of these tropes insightfully, disturbingly, and illuminatingly. His rich literature conceptualizes persons as multidimensional, complex beings and exposes society as the pre-fabricated stage in which diverse interactions evolve. Delgado's epistemological stance is fluid, non-rigid, and grounded on subjectivity.

In this essay I will focus on Delgado's latest book When Equality Ends: Stories About Race and Resistance. …