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Full-Text Articles in Law

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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

Cuba And Good Governance, Berta E. Hernández-Truyol

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

Critical Race Histories: In And Out, Darren Lenard Hutchinson

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

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

UF Law Faculty Publications

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


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

Socioeconomics: Choice And Challenges, Jeffrey L. Harrison

UF Law Faculty Publications

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

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


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

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

UF Law Faculty Publications

This recent developments outline discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during 2003 - and sometimes a little farther back in time if we find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are not discussed except to the ...


Race, Gender, And Work/Family Policy, Nancy E. Dowd Jan 2004

Race, Gender, And Work/Family Policy, Nancy E. Dowd

UF Law Faculty Publications

Family leave is not an end in itself, but rather is part of a much bigger picture: work/family policy. The goal of work/family policy is to achieve a good society by supporting families. Ideally, families enable children to develop to their fullest capacity and to contribute to their communities and society. Public rhetoric in the United States has always strongly supported families. Our policies, however, have not. In the area of work/family policy, the United States continues to lag behind every other advanced industrialized country, as well as many developing countries, in the degree to which we ...


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

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

UF Law Faculty Publications

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


A Good Old Habit, Or Just An Old One? Preferential Tax Treatment For Reorganizations, Yariv Brauner Jan 2004

A Good Old Habit, Or Just An Old One? Preferential Tax Treatment For Reorganizations, Yariv Brauner

UF Law Faculty Publications

This article proposes to repeal the preferential tax treatment of certain merger and acquisition transactions known as "reorganizations," and tax them like all other sales or exchanges. In the last 80 years this preference has been a cornerstone of our tax system. It is also one of the most stable rules in the tax code. Nevertheless, its normative justification is weak, and has never been rigorously debated in the legal literature. This article rejects the stated rationale for this rules - that such transactions trigger insufficient realization and therefore it is both unfair and impractical to currently tax them. It further ...


The Changing Character Of Sovereignty In International Law And International Relations, Winston P. Nagan, Craig Hammer Jan 2004

The Changing Character Of Sovereignty In International Law And International Relations, Winston P. Nagan, Craig Hammer

UF Law Faculty Publications

This Article makes observations on the concept of sovereignty; we suggest that the concept be studied using the contextual mapping method articulated by the New Haven School of jurisprudence. We observe tension in applying the concept to developing and developed states, and explore the possibility that sovereignty can be abused. We propose state typologies to explore the concept further and to scrutinize the accommodations of authority and control.


"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright Jan 2004

"Well-Behaved Women Don't Make History": Rethinking English Family, Law, And History, Danaya C. Wright

UF Law Faculty Publications

In 1857 Parliament finally succumbed to public and political pressure and passed a bill creating a domestic relations court: the Court for Divorce and Matrimonial Causes. This new court for the first time in common-law history, combined the following jurisdictions: the ecclesiastical court's jurisdiction over marital validity and separation; the Chancery court's jurisdiction over child custody and equitable estates; the common-law court's jurisdiction over property; and Parliament's jurisdiction over divorce and marital settlements. Wives were given the legal right to seek a divorce or judicial separation in a court of law, receive custody of the children ...


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

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

UF Law Faculty Publications

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


The Non-Merger Virtual Merger: Is Corporate Law Ready For Virtual Reality?, Stuart R. Cohn Jan 2004

The Non-Merger Virtual Merger: Is Corporate Law Ready For Virtual Reality?, Stuart R. Cohn

UF Law Faculty Publications

The term virtual mergers describes the relatively recent phenomenon of companies entering into contractual arrangements that are functionally, but not legally, equivalent to mergers prescribed by corporate statutes. Virtual mergers usually involve the shared use of assets contributed by each of the companies. A central element of the transaction is that the two companies remain legally independent, each with its own directors, officers, and shareholders. The arrangements can usually be terminated by either party, allowing each company to return to the status quo ante or exercise buyout rights if contractually provided.

Although virtual mergers have occurred among public companies in ...


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

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

UF Law Faculty Publications

The war on terrorism has dramatically impacted the direction of U.S. foreign policy, as well as the strategic and tactical operations for securing its objectives. Three questions central to U.S. foreign relations are whether these interests are consistent with international law; whether the United States seeks to modify international law to secure its interests; or whether foreign policy makers see the need to significantly change international legal standards. The aftermath of the of the attacks of September 11, 2001 in the United States triggered an intuitive reaction that the normal rules of restraint embodied in international law might ...


Querying Lawrence, Berta E. Hernández-Truyol Jan 2004

Querying Lawrence, Berta E. Hernández-Truyol

UF Law Faculty Publications

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


Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard L. Riskin Jan 2004

Damages: Using A Case Study To Teach Law, Lawyering, And Dispute Resolution, Leonard L. Riskin

UF Law Faculty Publications

Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based ...


Bringing The Margin To The Center: Comprehensive Strategies For Work/Family Policies, Nancy E. Dowd Jan 2004

Bringing The Margin To The Center: Comprehensive Strategies For Work/Family Policies, Nancy E. Dowd

UF Law Faculty Publications

The ultimate goal of work/family policy has always seemed deceptively clear: to provide institutional and cultural support to permit a healthy balance between family and work. An implicit assumption of that goal is that it would be achieved without undermining principles of equality. Indeed, the assumed result of work/family balance is that it would help achieve equality: families would be treated equally, caregivers would be supported equally, and children and family members would receive necessary and important care equally. It has long been recognized that work/family balance is especially critical to gender equality. Equality principles require that ...


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

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

UF Law Faculty Publications

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


Battle Of The Budget: The Legislature And The Governor Fight For Control, Jon L. Mills Jan 2004

Battle Of The Budget: The Legislature And The Governor Fight For Control, Jon L. Mills

UF Law Faculty Publications

This article describes the policy changes and the history of Article III, Section 19 of the Florida Constitution of 1968, and focuses on the continuing conflict between the branches surrounding the veto and budget reduction process. The battle between Florida's Legislative and Executive branches is sure to continue during the implementation of section 19. Even when section 19 is implemented, the effectiveness of the reforms can only be assessed after several years of experience. However, preliminary analysis indicates serious difficulties with some of the reforms.