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Full-Text Articles in Law

Other Markets, Other Costs: Modernizing Antitrust, Jeffrey L. Harrison Dec 2016

Other Markets, Other Costs: Modernizing Antitrust, Jeffrey L. Harrison

UF Law Faculty Publications

Today’s antitrust law is characterized by stagnation and indeterminacy. The failure is so thorough that it is not clear that U.S. competition law actually leads to any outcomes that are defendable except at the most superficial level. Moreover, when enforcement does result in a desirable outcome, it not clear that it is the best outcome. The principal reason for this state of affairs is that antitrust scholars and courts cling to misguided goals and theories that have not evolved despite an avalanche of information now available that can modernize the discipline.

This Article has two main sections that ...


Moving Forward By Looking Back: The Retroactive Application Of Obergefell, Lee-Ford Tritt Dec 2016

Moving Forward By Looking Back: The Retroactive Application Of Obergefell, Lee-Ford Tritt

UF Law Faculty Publications

The recent Supreme Court decision of Obergefell v. Hodges has forever altered American jurisprudence. Not only did this decision make same-sex marriage legal in all fifty states, but it also required states to recognize same-sex marriages from other states in accordance with the 14th Amendment. The Court’s holding in Obergefell raises a fundamental question with serious legal and financial significance: when exactly do these once unrecognized marriages legally begin? And to what extent must courts apply Obergefell retroactively? The stakes are high and substantive financial effects are pending on the answer to this question — for, with marriage, comes wide-ranging ...


Trade Law’S Responses To The Rise Of China, Wentong Zheng Oct 2016

Trade Law’S Responses To The Rise Of China, Wentong Zheng

UF Law Faculty Publications

This Article offers a systematic examination of trade law’s responses to the emergence of China as a major player in world trade. As an intricate set of rules written largely prior to the advent of the China era, trade law had to readjust to the powerful newcomer in ways that eventually changed trade law itself. This Article investigates these changes in four major areas of trade law: antidumping, countervailing duties, safeguards, and managed trade. In almost all of those areas, trade law witnessed a protectionist shift against Chinese products at the expense of sound, consistent principles. But, at the ...


Chinese Reception And Transplantation Of Western Contract Law, Wang Jingen, Larry A. Dimatteo Apr 2016

Chinese Reception And Transplantation Of Western Contract Law, Wang Jingen, Larry A. Dimatteo

UF Law Faculty Publications

The transformation of the People's Republic of China (China) into a market economy and its ascendancy into a global economic power increases the importance of studying its private laws (contract, torts, property, and unjust enrichment). The twin pillars of a market economy are private property and contract law. This Article will focus on the latter of the two pillars. The evolution of Chinese contract law provides an opportunity to study the influences of foreign laws and the formal transplantation of foreign and international law into a different cultural and legal tradition. China's formation of private contract law, beginning ...


Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol Mar 2016

Hospital Mergers And Economic Efficiency, Roger D. Blair, Christine Piette Durrance, D. Daniel Sokol

UF Law Faculty Publications

Consolidation via merger both from hospital-to-hospital mergers and from hospital acquisitions of physician groups is changing the competitive landscape of the provision of health care delivery in the United States. This Article undertakes a legal and economic examination of a recent Ninth Circuit case examining the hospital acquisition of a physician group. This Article explores the Saint Alphonsus Medical Center-Nampa Inc. v. St. Luke’s Health System, Ltd. (St. Luke’s) decision—proposing a type of analysis that the district court and Ninth Circuit should have undertaken and that we hope future courts undertake when analyzing mergers in the health ...


The American Bar Association Joint Task Force On Reversing The School-To-Prison Pipeline Preliminary Report, Sarah E. Redfield, Jason P. Nance Feb 2016

The American Bar Association Joint Task Force On Reversing The School-To-Prison Pipeline Preliminary Report, Sarah E. Redfield, Jason P. Nance

UF Law Faculty Publications

In 2014, the American Bar Association (ABA) Coalition on Racial and Ethnic Justice (COREJ) turned its attention to the continuing failures in the education system where certain groups of students — for example, students of color, with disabilities, or LGBTQ — are disproportionately over- or incorrectly categorized in special education, are disciplined more harshly, including referral to law enforcement for minimal misbehavior, achieve at lower levels, and eventually drop or are pushed out of school, often into juvenile justice facilities and prisons — a pattern now commonly referred to as the School-to-Prison Pipeline. While this problem certainly is not new, it presented a ...


Codifying Castle Harbour, Karen C. Burke, Grayson M.P. Mccouch Jan 2016

Codifying Castle Harbour, Karen C. Burke, Grayson M.P. Mccouch

UF Law Faculty Publications

In this article, Burke and McCouch discuss the 2015 statutory amendment, enacted as part of the last-minute budget deal, that revised and renumbered the family partnership provision of section 704(e)(1). They question whether the change will accomplish its stated purposes of clarifying existing law and raising $1.9 billion in revenue, and they conclude that the 2014 proposals by former House Ways and Means Committee Chair Dave Camp offer a politically expedient source of selective pay-fors for future government spending without actually raising taxes.


Exhausting Patents, Wentong Zheng Jan 2016

Exhausting Patents, Wentong Zheng

UF Law Faculty Publications

A bedrock principle of patent law — patent exhaustion — proclaims that an authorized sale of a patented article exhausts the patentee’s rights with respect to the article sold. Over one hundred and fifty years of case law, however, has produced two conflicting notions of patent exhaustion, one considering exhaustion to be mandatory regardless of whether the patentee subjects the sale to express patent restrictions, and another treating exhaustion as a default rule that applies only in unconditional sales. The uncertainty surrounding the patent exhaustion doctrine casts a significant legal cloud over patent licensing practices in the modern economy and has ...


Against Professing: Practicing Critical Criminal Procedure, Mae C. Quinn Jan 2016

Against Professing: Practicing Critical Criminal Procedure, Mae C. Quinn

UF Law Faculty Publications

I continue to “teach” Criminal Procedure as one of my core courses. I do so while trying my best to stay true to my values and commitments, surfacing the tensions and deficits I have described, and using concrete examples to drive home the many disparities and dysfunctions that still exist in this country despite the development of decades of criminal procedure doctrine. I try to encourage students to embrace their roles and responsibilities both as representatives of clients and change agents in this deeply imperfect system—urging them to consider what it might take to be an effective advocate for ...


Rats, Traps, And Trade Secrets, Elizabeth A. Rowe Jan 2016

Rats, Traps, And Trade Secrets, Elizabeth A. Rowe

UF Law Faculty Publications

Technology has facilitated both the amount of trade secrets that are now stored electronically, and the rise of cyber intrusions. Together, this has created a storm perfectly ripe for economic espionage. Cases involving unknown or anonymous offenders who may not be in the United States and who steal trade secrets using remote access tools (“RATs”) are especially problematic. This Art-icle is the first to address and place trade secret misappropriation within the larger backdrop of cybersecurity. First, it argues that systemic issues related to technology will continue to make legislative and judicial solutions suboptimal for cyber misappropriation. Second, it explores ...


Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae C. Quinn Jan 2016

Chaining Kids To The Ever Turning Wheel: Other Contemporary Costs Of Juvenile Court Involvement, Candace Johnson, Mae C. Quinn

UF Law Faculty Publications

In this essay, Candace Johnson and Mae Quinn respond to Tamar Birckhead's important article The New Peonage, based, in part, on their work and experience representing youth in St. Louis, Missouri. They concur with Professor Birckhead's conclusions about the unfortunate state of affairs in 21st century America--that we use fines, fees, and other prosecution practices to continue to unjustly punish poverty and oppressively regulate racial minorities. Such contemporary processes are far too reminiscent of historic convict leasing and Jim Crow era efforts intended to perpetuate second-class citizenship for persons of color. Johnson and Quinn add to Professor Birckhead ...


Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster Jan 2016

Mr. Peabody's Improbable Legal Intellectual History, Mark Fenster

UF Law Faculty Publications

Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners ...


Black Boys Matter: Developmental Equality, Nancy E. Dowd Jan 2016

Black Boys Matter: Developmental Equality, Nancy E. Dowd

UF Law Faculty Publications

The life course of Black boys is a stark reminder of the realities of inequality. While recent attention to policing and high profile deaths of Black youth and adults has raised consciousness of life-threatening situations, this focus exposes the most visceral and deadly aspect of a much larger set of issues. Those issues begin at birth, and are powerfully framed before adulthood, creating inequality particularly when the individual is most vulnerable, in childhood. This Article confronts the inequalities of Black boys and their subordination, as a vehicle to expose inequalities more generally based on children’s identities.

The life course ...


Students, Police, And The School-To-Prison Pipeline, Jason P. Nance Jan 2016

Students, Police, And The School-To-Prison Pipeline, Jason P. Nance

UF Law Faculty Publications

Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws and policies to keep students safe, including putting more police officers in schools. Yet these decisionmakers have not given enough attention to the potential negative consequences that such laws and policies may have, such as creating a pathway from school to prison for many students. Traditionally, only educators, not law enforcement, handled certain lower-level offenses that students committed, such as fighting or making threats without using a weapon. Drawing on recent restricted data from the US Department of ...


Dismantling The School-To-Prison Pipeline: Tools For Change, Jason P. Nance Jan 2016

Dismantling The School-To-Prison Pipeline: Tools For Change, Jason P. Nance

UF Law Faculty Publications

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system, such as excluding them from school. This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color. But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas ...


A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen Jan 2016

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

UF Law Faculty Publications

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the “zero-sum mindset,” can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in Genesis ...


A Socio-Economic Approach To Antitrust: Unpacking Competition, Consumer Surplus, And Allocative Efficiency, Jeffrey L. Harrison Jan 2016

A Socio-Economic Approach To Antitrust: Unpacking Competition, Consumer Surplus, And Allocative Efficiency, Jeffrey L. Harrison

UF Law Faculty Publications

This Article demonstrates the relationship between socio-economics and antitrust law. It uses socio-economics to both deconstruct the current economic foundation of antitrust policy and to suggest ways to improve that policy. There are four steps in this presentation. Part II examines the core elements of the economic approach to antitrust and its shortcomings, if any. For those even moderately versed in economics, it will note that the analysis begins at the most basic level. Obviously, antitrust is designed to make markets more competitive. But that goal is merely a means to the end of greater consumer surplus and allocative efficiency ...


Teaching Compliance, D. Daniel Sokol Jan 2016

Teaching Compliance, D. Daniel Sokol

UF Law Faculty Publications

Compliance is a growing field of practice across multiple areas of law. Increasingly companies put compliance risk among the most important corporate governance issues facing them. Moreover, as “JD plus” jobs proliferate, the demand for hiring both at the entry level and for former students currently in practice who are experienced in the compliance field will continue to grow. The growth in compliance jobs comes at a time in shifting demand for legal jobs for law school graduates. Traditional law firm entry level jobs at large law firms, which were the staple of on campus recruiting before 2007, have not ...


Over-Disciplining Students, Racial Bias, And The School-To-Prison Pipeline, Jason P. Nance Jan 2016

Over-Disciplining Students, Racial Bias, And The School-To-Prison Pipeline, Jason P. Nance

UF Law Faculty Publications

Over the last three decades, our nation has witnessed a dramatic change regarding how schools discipline children. Empirical evidence during this time period demonstrates that schools increasingly have relied on extreme forms of punishment such as suspensions, expulsions, referrals to law enforcement, and school-based arrests to discipline students for violations of school rules, including for low-level offenses. Many have referred to this disturbing trend of schools directly referring students to law enforcement or creating conditions under which students are more likely to become involved in the justice system—such as suspending or expelling them—as the “school-to-prison pipeline.” Perhaps the ...


Communication And Competence For Self-Representation, E. Lea Johnston Jan 2016

Communication And Competence For Self-Representation, E. Lea Johnston

UF Law Faculty Publications

In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. States have applied these standards ...


Unifying Antidiscrimination Law Through Stereotype Theory, Stephanie Bornstein Jan 2016

Unifying Antidiscrimination Law Through Stereotype Theory, Stephanie Bornstein

UF Law Faculty Publications

Has litigation under Title VII of the Civil Rights Act of 1964 reached the limit of its utility in advancing workplace equality? After four decades of forward progress on antidiscrimination law in the courts, Supreme Court decisions in the last decade have signaled a retrenchment, disapproving of key theories scholars and advocates had pursued to address workplace discrimination in its modern, more subtle and structural forms. Yet sex and race inequality at work endure, particularly in pay and at the top of organizations.

Notably, while the Roberts Court majority appears skeptical that discrimination persists and resistant to recognizing the role ...


United States Media Law Update, Lyrissa Barnett Lidsky, Rachael Jones Jan 2016

United States Media Law Update, Lyrissa Barnett Lidsky, Rachael Jones

UF Law Faculty Publications

In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is ...


Treaties In The Aftermath Of Beps, Yariv Brauner Jan 2016

Treaties In The Aftermath Of Beps, Yariv Brauner

UF Law Faculty Publications

The article argues that, despite the fanfare around it, the outcome of the BEPS project is unlikely to be dramatic, at least in the short term. Beyond a period of increased legal uncertainty and aggressive enforcement by some countries, it expects little substantive change in tax treaties. The challenges to the dominance of the OECD and the richest countries would likely be assuaged with marginal concessions, most or all of which not be affecting tax treaties. Yet, the article sees a silver lining in the non-substantive, structural, and instrumental outcomes of the BEPS project. It argues that even if unintended ...


Unilateral Responses To Tax Treaty Abuse: A Functional Approach, Omri Y. Marian Jan 2016

Unilateral Responses To Tax Treaty Abuse: A Functional Approach, Omri Y. Marian

UF Law Faculty Publications

Recent years have seen a dramatic increase in the attention given to abusive tax schemes that take advantage of bilateral tax treaties. The ensuing discourse tends to view potential responses to treaty abuses as a hierarchical set of options, gradually escalating, in which treaty termination is a last resort option. This article argues that the hierarchical view of unilateral responses to treaty abuse is misguided. Unilateral responses to treaty-based abuse are not hierarchically ordered. Rather, the approach to treaty abuse is (and should be) functional, adopting specific types of unilateral responses based on the type of treaty abuse at issue ...


Rethinking Law Enforcement Officers In Schools, Jason P. Nance Jan 2016

Rethinking Law Enforcement Officers In Schools, Jason P. Nance

UF Law Faculty Publications

A recent event that occurred in a South Carolina classroom illustrates why there should be concern about assigning law enforcement officers to work in public schools. In October of 2015, a teacher called a law enforcement officer into a classroom to handle a student behavior problem. A female student was using a cell phone in violation of school rules. Other students in the classroom captured what happened next by video. The videos show that when the student refused to exit the classroom, the officer grabbed her by the neck, flipped her and her desk to the floor, and then forcibly ...


Post-Ferguson Social Engineering: Problem-Solving Justice Or Just Posturing?, Mae C. Quinn Jan 2016

Post-Ferguson Social Engineering: Problem-Solving Justice Or Just Posturing?, Mae C. Quinn

UF Law Faculty Publications

This essay - published on the second anniversary of Mike Brown's shooting death in Ferguson and one year after the United States Department of Justice issued its shocking findings regarding St. Louis County’s juvenile court system - urges skepticism regarding claims of ongoing system reform in Missouri.

While there is some good work being done by committed reformers, it interrogates the intentions of emerging "change agents" who now purport to care about racial bias, youth justice, and criminal law – those who for years merely stepped over widespread injustices in their own community. It further challenges the legal theories such individuals ...


The Same River Twice: A Brief History Of How The 1968 Florida Constitution Came To Be And What It Has Become, Mary E. Adkins Jan 2016

The Same River Twice: A Brief History Of How The 1968 Florida Constitution Came To Be And What It Has Become, Mary E. Adkins

UF Law Faculty Publications

In 1968, Florida’s voters adopted a nearly complete revision of the Florida Constitution; the resulting document was Florida’s sixth constitution. That constitution provided four ways by which it could be amended; one was a method unique to Florida then and now. That provision called for a Constitution Revision Commission to meet ten years after the 1968 constitution was adopted and every twenty years thereafter to reconsider the entire constitution; determine what, if any, revisions the constitution needed; and propose revisions directly to the voting public. Two such revision commissions have met since 1968. A third will meet in ...


Got Guts? The Iconic Streams Of The U.S. Virgin Islands And The Law’S Ephemeral Edge, Jesse Reiblich, Thomas T. Ankersen Jan 2016

Got Guts? The Iconic Streams Of The U.S. Virgin Islands And The Law’S Ephemeral Edge, Jesse Reiblich, Thomas T. Ankersen

UF Law Faculty Publications

The legal status of “guts” — the ephemeral streams of the U.S. Virgin Islands that typically flow only after rainfall — is uncertain. Furthermore, it is unclear what, if any, property interest the Government of the Virgin Islands, and the public, have in these watercourses. This uncertainty stems from the non-navigable nature of guts, and is compounded by the Virgin Islands’ unique legal system, a legal system that recognizes at least some Danish law from its colonial past, and has seemingly inconsistent provisions purporting to confer legal and regulatory interests in these guts to the Government of the Virgin Islands. The ...


Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford Jan 2016

Antitrust And Regulating Big Data, D. Daniel Sokol, Roisin E. Comerford

UF Law Faculty Publications

The collection of user data online has seen enormous growth in recent years. Consumers have benefited from this growth through an increase in free or heavily subsidized services, better quality offerings, and rapid innovation. At the same time, the debate about Big Data, and what it really means for consumers and competition, has grown louder. Many have focused on whether Big Data even presents an antitrust issue, and whether and how harms resulting from Big Data should be analyzed and remedied under the antitrust laws. The academic literature, however, has somewhat lagged behind the policy debate, and a closer inspection ...


Civil Arrest? (Another) St. Louis Case Study In Unconstitutionality, Mae C. Quinn, Eirik Cheverud Jan 2016

Civil Arrest? (Another) St. Louis Case Study In Unconstitutionality, Mae C. Quinn, Eirik Cheverud

UF Law Faculty Publications

This Article discusses the unconstitutional arrest of individuals for engaging in civil infractions. Using St. Louis area policing as a case study, Quinn and Cheverud first show how arresting individuals for committing civil infractions is unconstitutional, and then discuss how the civil arrests have been widely used in practice. Quinn and Cheverud argue that states should mandate citations for non-criminal and quasi-criminal cases to ensure faithful practice by local police officers.