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Full-Text Articles in Law

Prosecuting Martha: Federal Prosecutorial Power And The Need For A Law Of Counts, Michael L. Seigel, Christopher Slobogin Dec 2003

Prosecuting Martha: Federal Prosecutorial Power And The Need For A Law Of Counts, Michael L. Seigel, Christopher Slobogin

UF Law Faculty Publications

Martha Stewart's case illustrates a wide variety of prosecutorial decision-making. We have defended the U.S. Attorney's decision to investigate and prosecute Stewart, but called into question the further decision to charge her with five counts. As a way of curtailing the redundant charging phenomenon, which is widespread, we have suggested that the courts develop a law of counts to cabin prosecutorial charging discretion. Thus, our proposal to create a law of counts would not require prosecutors to act against their short- or long-term interests. Rather, it would be implemented by judges using the interpretive method, without going ...


Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin Dec 2003

Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin

UF Law Faculty Publications

This Article reviews the author's previous mediator-orientation models and proposes a new system for understanding the range of mediator orientations based on substantive, procedural, and meta-procedural decision-making grids.


Diversity Matters: Race, Gender And Ethnicity In Legal Education., Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast Dec 2003

Diversity Matters: Race, Gender And Ethnicity In Legal Education., Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast

UF Law Faculty Publications

This Article presents more evidence of the inequality that persists in legal education for students. Based on a survey of University of Florida law students conducted in 2001, this study reaffirms the existence of differential experience and an inegalitarian culture in legal education. However, it also demonstrates the importance of diversity and the recognition by a significant majority of students of the value of race and gender pluralism. These competing findings provide a clear guide to the future direction of legal education.


Building An Environmental Ethic From The Ground Up, Alyson C. Flournoy Nov 2003

Building An Environmental Ethic From The Ground Up, Alyson C. Flournoy

UF Law Faculty Publications

Over the last twenty years there has been a remarkable theoretical flourishing in the field of environmental philosophy, with the development of biocentric ethics, animal rights theories, deep ecology, ecofeminism, modified utilitarianism, moral pluralism and theories drawing on numerous religious and cultural traditions. These theories explore the intellectual and moral causes for the environmentally destructive practices of the dominant western industrial and economic culture, and propose alternatives that might avoid these consequences. This symposium raises a worthy question: to what extent have these theories had practical impact on environmental law and policy. I come to this question as a lawyer ...


Exculpatory Liabilities And Partnership Nonrecourse Allocations, Karen C. Burke Oct 2003

Exculpatory Liabilities And Partnership Nonrecourse Allocations, Karen C. Burke

UF Law Faculty Publications

The rise of limited liability companies (LLCs) classified as partnerships for federal income tax purposes challenges traditional assumptions concerning the treatment of recourse and nonrecourse liabilities under Subchapter K. The complex rules of sections 704(b) and 752 give little attention to liabilities that are recourse to the entity under section 1001 but for which no member bears the economic risk of loss under section 752. In comparison to traditional general or limited partnerships, however, LLCs are much more likely to incur such "exculpatory" liabilities because of the limited liability shield under state law. Although exculpatory liabilities are functionally quite ...


The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster Oct 2003

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial ...


From Genes, Marriage And Money To Nurture: Redefining Fatherhood, Nancy E. Dowd Oct 2003

From Genes, Marriage And Money To Nurture: Redefining Fatherhood, Nancy E. Dowd

UF Law Faculty Publications

Genes should not define fatherhood. This is wrong for men, and wrong for children. Genes define identity, but that link should be separated from the obligations and rights of parenthood. Specifically, I argue that fatherhood should be defined by doing (action) instead of being (status), with the critical component being acts of nurturing. In this essay I define in more detail this concept of fatherhood and its characteristics; discuss the consequences related to genetic ties; and consider the policy implications of defining fatherhood around nurture when genetic ties can be established for all children. It is critical throughout to remain ...


Restricting The Flow Of Funds From U.S. Charities To International Terrorist Organizations - A Proposal, Mindy Herzfeld Jul 2003

Restricting The Flow Of Funds From U.S. Charities To International Terrorist Organizations - A Proposal, Mindy Herzfeld

UF Law Faculty Publications

This paper argues that the Internal Revenue Service should take a more active stance in denying tax exemption to organizations that finance terrorist activities abroad. The paper explores the well-established principle that organizations granted U.S. tax-exemption must act consistently with national public policy, and the application of that principle to charitable organizations that send monies overseas. To foster that policy, the Service should apply special guidelines to charitable organizations that channel contributions abroad, similar to the special guidelines in effect for tax-exempt private schools. In addition, legislative changes should be made to advance such a goal in order to ...


Thurman Arnold's International Antitrust Legacy, William H. Page Jul 2003

Thurman Arnold's International Antitrust Legacy, William H. Page

UF Law Faculty Publications

In the decades before the World War II, a new economic philosophy favoring cooperation among competitors challenged the competitive model embodied in the antitrust laws. In the United States, the cooperative model had some successes in, for example, the Webb Pomerene Act of 1918, the associational activities of the 1920s, and the NRA codes of the 1930s. And, of course, antitrust law itself, after some false starts, came to recognize that some forms of cooperation are necessary for efficient production. Outside the United States, however, especially in the economic turbulence following World War I, policymakers adopted such an extreme form ...


Factless Jurisprudence, Darren Lenard Hutchinson Jul 2003

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment ...


Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen Jul 2003

Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen

UF Law Faculty Publications

This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and ...


State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page Jul 2003

State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page

UF Law Faculty Publications

Antitrust observers are familiar with the two-part Midcal test for the immunity of state regulation from federal antitrust laws: the state must clearly articulate its policy to displace competition and must "actively supervise" any private conduct pursuant to the policy. But state action need not meet these requirements if it is "unilateral" and therefore does not conflict with Section 1. Only if a state-authorized restraint is "hybrid," combining state and private action in a way that resembles aprohibited agreement, need the restraint satisfy Midcal.

In this article, John Lopatka and Bill Page examine the history andcurrent importance of the distinction ...


A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale Apr 2003

A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale

UF Law Faculty Publications

Studies of nineteenth century legal history assume that the antebellum South, and antebellum South Carolina in particular, had a legal culture shaped by honor culture and marked by the hierarchical assumptions and extralegal violence that honor culture engendered. In this article, I offer a modification of that well-established account. While I do not question the influence of honor on South Carolina's antebellum legal culture, I suggest that the state had a second, shame-based system of popular justice, in which women played a prominent role. As was the case with honor culture, this second form of extralegal justice, which I ...


Familias Sin Fronteras: Mujeres Unidas Por Su Historia, Berta E. Hernández-Truyol Apr 2003

Familias Sin Fronteras: Mujeres Unidas Por Su Historia, Berta E. Hernández-Truyol

UF Law Faculty Publications

Does there exist a Cuban society that is culturally cohesive? Is Cubanidad dependent on territorial borders and political ideology? Can there be a singular narrative on Cubanidad that transcends geography and politics? This article asks those questions and posits that, while political and economic differences might result in very different lifestyles and ideologies, social and cultural tropes might provide some similarities and cultural cohesion. This thesis is tested through the study of available, albeit sparse, information on the role of Cubanas in society. First the role of women in Cuban society throughout history is examined. Next, changes in the laws ...


Legal Cultures Of Latin America And The United States: Conflict Or Merger, Michael Wallace Gordon Jan 2003

Legal Cultures Of Latin America And The United States: Conflict Or Merger, Michael Wallace Gordon

UF Law Faculty Publications

I am uncertain about how LatCrits think about the legal cultures of Latin America and the United States, and what I might possibly add to this collection of America's preeminent group of LatCrits. Perhaps what might be useful is to draw upon my thirty-five years of teaching law to note some examples where the two cultures have come in conflict or have merged. One might wish to know who "won," or better, what survived, when they came in conflict or merged. An example of the former is when new states of this union in the 1800s were presented with ...


Glocalizing Law And Culture: Towards A Cross-Constitutive Paradigm, Berta E. Hernández-Truyol Jan 2003

Glocalizing Law And Culture: Towards A Cross-Constitutive Paradigm, Berta E. Hernández-Truyol

UF Law Faculty Publications

This lecture addresses the relationship between law and culture in three general parts. The first part consists of a brief review of the theories addressing the relationship of law and culture, mainly the mirror theory. But I will suggest that there is more to the relationship of law and culture than one being an inert reflection of the other; hence my proposal for what I call, as a working concept, a cross-constitutive paradigm of law and culture. The second part reviews the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW''), a law that seeks to effect ...


Latcritical Encounters With Culture, In North-South Frameworks, Pedro A. Malavet Jan 2003

Latcritical Encounters With Culture, In North-South Frameworks, Pedro A. Malavet

UF Law Faculty Publications

A critical introduction of a group of articles in the LatCrit VI Symposium issue, discussing the authors' diverse approaches to Latin American legal cultures and contextualizing the publications in the growing body of LatCrit scholarship. The Essay discusses how the other essays in the issue fit within or challenge the themes of the specific roundtable, plenary, or workshop in which they were presented, and then locates the cluster within the present and the future of LatCrit Theory generally, and LatCritical praxi in particular. This Essay addresses each presentation, the specific conference context(s) in which it was delivered, and how ...


Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain Jan 2003

Approaches To Statutory Interpretation And Legislative History In France, Claire M. Germain

UF Law Faculty Publications

In France, Justice Jackson's question about where to look for the meaning of a statute would be phrased in broader terms and would not be limited to the question of whether to look only at the words of a statute or also at the legislative intent. French law starts from the premise that statutes and codes are the foundations of the legal system in the same way that cases are the foundation of the common-law system. Because of the primacy of written law in France, statutory interpretation lies at the heart of French law. Statutory interpretation is very flexible ...


Shared Knowledge, Shared Jurisprudence: Learning To Speak Environmental Law Creole (Criollo), Thomas T. Ankersen Jan 2003

Shared Knowledge, Shared Jurisprudence: Learning To Speak Environmental Law Creole (Criollo), Thomas T. Ankersen

UF Law Faculty Publications

The character of the legal and judicial systems in Latin America and the Caribbean is undergoing fundamental change.' Traditionally weak judiciaries are emboldened, precedent as a jurisprudential decision-making tool has become increasingly important, the apparatus of administrative law has become more sophisticated and complex, and increasingly sophisticated reporting systems and the "globalization" of shared jurisprudence through contemporary communication media have all contributed to the development of law in the region. These broader systemic developments, though uneven and incomplete, have occurred in tandem with the emergence of environmental law as a unique and discrete body of law.

This Article traces several ...


Law, Culture, And Family: The Transformative Power Of Culture And The Limits Of Law, Nancy E. Dowd Jan 2003

Law, Culture, And Family: The Transformative Power Of Culture And The Limits Of Law, Nancy E. Dowd

UF Law Faculty Publications

Law inevitably is involved in the resolution of cultural conflicts. Nonintervention acts as powerfully as intervention; in either case, law is a powerful actor in its role as a part of cultural dialogue, as well as in its role as a coercive force. Law is never neutral in my view. If it “stays out” of a situation, then it is complicit in the status quo or in permitting the conflict to be resolved without legal intervention, which may weight the outcome in a particular direction. If law “comes in,” it similarly “sides” with a particular position because, in part, our ...


Coaches' Liability For Athletes' Injuries And Deaths, Thomas R. Hurst, James N. Knight Jan 2003

Coaches' Liability For Athletes' Injuries And Deaths, Thomas R. Hurst, James N. Knight

UF Law Faculty Publications

In the brutally hot summer of 2001, three prominent athletes lost their lives on playing fields across the country. Football players Korey Stringer of the Minnesota Vikings,' Rashidi Wheeler of Northwestern University, and Eraste Autin of the University Florida collapsed and died in summer practices. These practices are an annual rite that has preceded each football season since the sport was conceived approximately ninety years ago. While these deaths are tragic, they are certainly not uncommon. Since 1995, eighteen high school and collegiate football players have died while participating in practices or games. In America's litigious society, these deaths ...


The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii Jan 2003

The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii

UF Law Faculty Publications

Whenever two or more market participants collaborate to restrain trade, the potential applicability of federal and state antitrust laws must be considered. When the collaborating parties are insurance companies, a further layer of analysis may be necessary to determine whether the activity is exempt from federal antitrust regulation. Even if the activity enjoys an exemption, state antitrust law may have different things to say about the activity. Embedded in each of these levels of analysis are many difficult and complex subsidiary questions. In short, the law of insurance antitrust is not a subject for the faint of heart.

Antitrust law ...


Privacy Rights Versus Foia Disclosure Policy: The "Uses And Effects" Double Standard In Access To Personally-Identifiable Information In Government Records, Bill F. Chamberlin, Michael Hoefges, Martin E. Halstuk Jan 2003

Privacy Rights Versus Foia Disclosure Policy: The "Uses And Effects" Double Standard In Access To Personally-Identifiable Information In Government Records, Bill F. Chamberlin, Michael Hoefges, Martin E. Halstuk

UF Law Faculty Publications

The U.S. government maintains a vast amount of personally-identifiable information on millions of American citizens. Much of this information is contained in electronic databases maintained by federal agencies. Various Freedom of Information Act (FOIA) requesters, such as journalists, marketers, and union organizers seek this information for different purposes including investigative reporting and targeted solicitations. These kinds of uses are known as "derivative uses" because this government-compiled information is requested for purposes other than the official purposes for which the information was originally gathered. These and other derivative uses of personally-identifiable information often implicate privacy concerns. Conversely, restrictions on public ...


Contributions, Distributions, And Assumption Of Liabilities: Confronting Economic Reality, Karen C. Burke Jan 2003

Contributions, Distributions, And Assumption Of Liabilities: Confronting Economic Reality, Karen C. Burke

UF Law Faculty Publications

To combat a relatively arcane international tax-shelter abuse, Congress recently amended Code sections 357 and 362 governing contributions of encumbered property to a corporation. This Article offers a critical assessment of the recent amendments to the liability assumption rules of section 357 and corresponding basis provisions of section 362. Part I explores the divergence between the former liability assumption rules and the "economic benefit" doctrine of the section 1001 regulations. Part II focuses on the technical definition of assumption of recourse and nonrecourse liabilities under amended section 357(d). Part III examines the corollary basis provisions of section 362, as ...


Feminist Legal Scholarship: Charting Topics And Authors, 1978-2002, Laura A. Rosenbury Jan 2003

Feminist Legal Scholarship: Charting Topics And Authors, 1978-2002, Laura A. Rosenbury

UF Law Faculty Publications

In their call for papers, the organizers of the Columbia Journal of Gender and Law’s Spring 2003 symposium “Why a Feminist Law Journal?” posed several questions, including: "Are feminist law journals a victim of their own success? Have they outlived their usefulness?" and "What is the state of feminist legal scholarship today? What constitutes feminist scholarship?" As a new member of the legal academy, my answers to their questions depend on answers to two more basic questions: What has been published in feminist law journals? And, how do those articles relate to feminist articles published in non-specialty, or flagship ...


The Environmental Commerce Clause, Christine A. Klein Jan 2003

The Environmental Commerce Clause, Christine A. Klein

UF Law Faculty Publications

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause -- the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect.

This study ...


An International Tax Regime In Crystallization, Yariv Brauner Jan 2003

An International Tax Regime In Crystallization, Yariv Brauner

UF Law Faculty Publications

The grand illusion of a single, worldwide, tax system that will eliminate all international inefficiencies, and assist all the nations of the world to maximize their relative advantages, is, as commonly accepted, utopian. The tax, academic and professional, writing in the field of international taxation, and cross-border interaction, between tax systems and jurisdictions has grown, exponentially, in the last decade, but no significant work has been done to prove, or disprove, the naivety of this hypothesis. Some scholars and tax executives, in certain international organizations, have discussed ideas along this line, but no single organization has, seriously, attempted to promote ...


Recent Developments In Federal Income Taxation: The Year 2002, Ira B. Shepard, Martin J. Mcmahon Jr. Jan 2003

Recent Developments In Federal Income Taxation: The Year 2002, 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 2002 - and sometimes a little farther back in time if we find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed except to the ...


In Search Of An Environmental Ethic, Alyson C. Flournoy Jan 2003

In Search Of An Environmental Ethic, Alyson C. Flournoy

UF Law Faculty Publications

A preliminary analysis of several core environmental provisions suggests that the mix of values embedded in our environmental statutes is substantially similar to the values found in the common law and non-environmental statutes. That is, the environmental statutes tend to reflect human concerns that predate any dawning of environmental awareness -- with only a modest introduction of new values or reasons for caring that are uniquely attributable to concern for the human relationship to the environment. If this is true, it seems to undermine a tenet of the public debate. It may call into question the very naming of these as ...


"Unexplainable On Grounds Other Than Race": The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren Lenard Hutchinson Jan 2003

"Unexplainable On Grounds Other Than Race": The Inversion Of Privilege And Subordination In Equal Protection Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

In this article, Professor Darren Hutchinson contributes to the debate over the meaning of the Fourteenth Amendment's Equal Protection Clause by arguing that the Supreme Court has inverted its purpose and effect. Professor Hutchinson contends that the Court, in its judicial capacity, provides protection and judicial solicitude for privileged and powerful groups in our country, while at the same time requires traditionally subordinated and oppressed groups to utilize the political process to seek redress for acts of oppression. According to Professor Hutchinson, this process allows social structures of oppression and subordination to remain intact.

First, Professor Hutchinson examines the ...