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Series

2009

University of Florida Levin College of Law

Articles 1 - 30 of 46

Full-Text Articles in Law

Setting The Standard: A Critique Of Bonnie's Competency Standard And The Potential Of Problem-Solving Theory For Self-Representation At Trial, E. Lea Johnston Nov 2009

Setting The Standard: A Critique Of Bonnie's Competency Standard And The Potential Of Problem-Solving Theory For Self-Representation At Trial, E. Lea Johnston

UF Law Faculty Publications

In Indiana v. Edwards, the U.S. Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competency standard for self-representation than to stand trial. The Court declined to specify the contents of a permissible representational competence standard, but cited with support the construct of adjudicative competence developed by Professor Richard Bonnie. While Bonnie's proposal may provide an appropriate framework for evaluating the competence of represented defendants' decisions, it is at most a starting point for defining the capacities needed for self-representation at trial. This Article begins by exposing three reasons why Bonnie's approach is …

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National Security Policy And Ratification Of The Comprehensive Test Ban Treaty, Winston P. Nagan, Erin K. Slemmens Oct 2009

National Security Policy And Ratification Of The Comprehensive Test Ban Treaty, Winston P. Nagan, Erin K. Slemmens

UF Law Faculty Publications

While no legal obstacles prevent the U.S. Senate's reconsideration of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), lingering doubts (about the effectiveness of the international treaty) and partisan politics (founded upon outdated ideologies of national sovereignty) may again foreclose the opportunity for the United States to lead a just and thorough regime of international arms control. By closely examining the U.S. Senate's previous rejection (and, by implication, the nation's non-ratification) of the CTBT, we assess the political process that failed to realize the security values now imperative to U.S. national defense. To this appraisal, we join analysis of the contemporary law, policy, …

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A Sociological Approach To Misappropriation, Elizabeth A. Rowe Oct 2009

A Sociological Approach To Misappropriation, Elizabeth A. Rowe

UF Law Faculty Publications

Social science and law are not strangers. In analyzing legal issues, scholars have often utilized theoretical or methodological approaches from the social sciences. While economics appears to be the prevalent branch of social science in legal analysis, sociology, with its focus on group (as opposed to individual) behavior, can be a suitable approach where, for instance, the application and interpretation of the law is based largely on contextual factors and on behavior. Trade secret law is one of these areas. Public policy arguments and value judgments loom large in these cases. Trade secret law regulates commercial ethics and morality, and …

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U.S. Immigration Law And The Traditional Nuclear Conception Of Family: Toward A Functional Definition Of Family That Protects Children's Fundamental Human Rights, Shani M. King Oct 2009

U.S. Immigration Law And The Traditional Nuclear Conception Of Family: Toward A Functional Definition Of Family That Protects Children's Fundamental Human Rights, Shani M. King

UF Law Faculty Publications

Although the paramount purpose of United States immigration law is not to protect the integrity of family, U.S.immigration law does explicitly aim to do so in certain circumstances. The Immigration and Nationality Act (INA) includes family reunification provisions, for example, which allow United States citizens and lawful permanent residents to petition for family members who live in other countries to join them in the United States. Even the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), often described as a draconian statute, technically allows otherwise removable "aliens" to remain in the United States if removal would result in …

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Health And Reproductive Rights In The Protocol To The African Charter: Competing Influences And Unsettling Questions, Rachel Rebouché Oct 2009

Health And Reproductive Rights In The Protocol To The African Charter: Competing Influences And Unsettling Questions, Rachel Rebouché

UF Law Faculty Publications

In 2005, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the Protocol) came into force. Since that time, the Protocol has received scant attention in legal scholarship. Where the Protocol has been mentioned, by and large it has received praise as a major step forward for women's rights on the continent. Much of that praise is merited. The Protocol includes broad rights to non-discrimination, equality, and dignity, and it addresses a variety of areas such as labor and employment, marriage and the family, the legal system, the political process and …

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Sexual Politics And Social Change, Darren Lenard Hutchinson Jul 2009

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

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Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann Jul 2009

Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann

UF Law Faculty Publications

This Article takes a national view of the modernization of water law. Using Florida as an example, it identifies some of the most important and controversial challenges faced by states. Part II provides an overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in a piecemeal fashion, resulting in a patchwork of rules -- common law and statutory, old and new. In rare cases -- including that of Florida -- the process may be more …

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Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee May 2009

Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee

UF Law Faculty Publications

Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party's unilateral decision or both parties' mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …

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Find It Fast And Free: An Update On Florida And Federal Research On The Internet, Patricia Morgan Apr 2009

Find It Fast And Free: An Update On Florida And Federal Research On The Internet, Patricia Morgan

UF Law Faculty Publications

No abstract provided.

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The Gary Dinners And The Meaning Of Concerted Action, William H. Page Apr 2009

The Gary Dinners And The Meaning Of Concerted Action, William H. Page

UF Law Faculty Publications

Between 1907 and 1911, executives of American steel manufacturers gathered in a series of social events and meetings that became known as the Gary dinners. Their founder, Judge Elbert H. Gary, chairman of the board of the United States Steel Corporation (U.S. Steel), believed the dinners were a lawful way to stabilize steel prices by enabling manufacturers to tell each other "frankly and freely what they were doing, how much business they were doing, what prices they were charging, how much wages they were paying their men, and... all information concerning their business." The government agreed that the dinners stabilized …

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Foreword - A Dedication To Barbara Bennett Woodhouse, Nancy E. Dowd Apr 2009

Foreword - A Dedication To Barbara Bennett Woodhouse, Nancy E. Dowd

UF Law Faculty Publications

Families and family law are at the cutting edge of social policy. As we navigate through difficult times, we are reminded not only of the importance of families, but also of their vulnerability. The challenge for family law and policy is to remain responsive and relevant. This requires that we confront the realities of families, their needs and issues. We live in times of enormous diversity in family forms. That reality is frightening and worrisome to some, but reminds us that it is how families function, rather than what they look like, that is most important. Embracing function over form …

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Awareness And Ethics In Dispute Resolution And Law: Why Mindfulness Tends To Foster Ethical Behavior, Leonard L. Riskin Apr 2009

Awareness And Ethics In Dispute Resolution And Law: Why Mindfulness Tends To Foster Ethical Behavior, Leonard L. Riskin

UF Law Faculty Publications

This paper is an extended version of a luncheon presentation given at the Symposium, Ethics in the Expanding World of ADR: Considerations, Conundrums, and Conflicts, sponsored by South Texas College of Law in Houston, Texas, on Nov. 2, 2007.

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A Malthusian Analysis Of The So-Called Dynasty Trust, William J. Turnier, Jeffrey L. Harrison Apr 2009

A Malthusian Analysis Of The So-Called Dynasty Trust, William J. Turnier, Jeffrey L. Harrison

UF Law Faculty Publications

Select financial institutions and members of the Bar have seized upon the presence of the limited exemption from the generation skipping transfer tax provided under the Internal Revenue Code to promote so-called dynasty trusts as a means whereby individuals can build dynastic wealth for a family forever free from transfer taxes. To realize such benefits, state law that does not impose the Rule Against Perpetuities must govern the trust. The promise of dynastic wealth is unlikely to be realized due to several factors. Administrative and tax costs are likely to reduce the yield on such trusts to a level where …

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Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan Jan 2009

Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan

UF Law Faculty Publications

As part of the George Washington Law Review's symposium "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century," participants discussed the nature of intergenerational obligations as they relate to fiscal policy. The panelists reached consensus that intergenerational justice is not an appropriate lens through which to analyze fiscal issues, because there is no obvious starting point from which to build a moral consensus about whether current generations owe anything at all to future generations, much less how to quantify any such obligation. In addition, even pessimistic forecasts indicate that future generations will …

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Sperms And Estates: An Unadulterated Functionally Based Approach To Parent-Child Property Succession, Lee-Ford Tritt Jan 2009

Sperms And Estates: An Unadulterated Functionally Based Approach To Parent-Child Property Succession, Lee-Ford Tritt

UF Law Faculty Publications

The Article argues that the sanguinary nexus test, the dominant standard for determining whether an individual has a right to inherit property when another dies, has become an increasingly frustrating, and arguably arcane, legal tool in light of the diversity of family relationships extant in modern American life. The sanguinary nexus test determines child status based upon ties of “blood.” Considering the evolving notions of family structures and advances in reproductive technologies involving cloning, surrogacy and egg/sperm donation, serious questions arise about whether the existing sanguinary nexus test can produce results consistent with the fundamental principle of testamentary freedom underlying …

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Racial Exhaustion, Darren Lenard Hutchinson Jan 2009

Racial Exhaustion, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme …

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The Madoff Scandal, Market Regulatory Failure And The Business Education Of Lawyers, Robert J. Rhee Jan 2009

The Madoff Scandal, Market Regulatory Failure And The Business Education Of Lawyers, Robert J. Rhee

UF Law Faculty Publications

This essay suggests that a deficiency in legal education is a contributing cause of the regulatory failure. The most scandalous malfeasance of this new era, the Madoff Ponzi scheme, evinces the failure of improperly trained lawyers and regulators. It also calls into question whether the prevailing regulatory philosophy of disclosure is sufficient in a complex market. This essay answers an important question underlying these considerations: What can legal education do to better train business lawyers and regulators for a market that is becoming more complex. One answer, it suggests, is a simple one: law schools should teach a little more …

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The Future Of International Antitrust And Improving Antitrust Agency Capacity, D. Daniel Sokol Jan 2009

The Future Of International Antitrust And Improving Antitrust Agency Capacity, D. Daniel Sokol

UF Law Faculty Publications

One of the key issues in international antitrust has been how to make antitrust more effective around the world. Most antitrust laws have been adopted or significantly modified since 1990. A number of key jurisdictions are either fairly new to antitrust altogether or to an antitrust regime that effectively employs the latest in economic thinking and the legal tools necessary to promote competition. Jurisdictions that have made antitrust a new and important cornerstone to economic policy include Brazil, Russia, India, and China. Because of the stakes involved in the ability of antitrust to foster economic development and to prevent misguided …

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Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November Jan 2009

Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November

UF Law Faculty Publications

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on …

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Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe Jan 2009

Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe

UF Law Faculty Publications

In tort law, the doctrine of contributory negligence captures conduct by the plaintiff that falls below the standard to which he should conform for his own protection. Whether one has been contributorily negligent is determined by an objective standard of reasonableness under the circumstances. This Article, for the first time, applies contributory negligence principles to trade secret law. It draws upon this doctrine to frame and analyze a challenge posed by modem technology. The very technological tools in use today that increase the efficiency with which companies do business also create challenges for trade secret protection. What might have been …

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Undressing The Ceo: Disclosing Private, Material Matters Of Public Company Executives, Tom C.W. Lin Jan 2009

Undressing The Ceo: Disclosing Private, Material Matters Of Public Company Executives, Tom C.W. Lin

UF Law Faculty Publications

Disclosing material private matters of public company executives is a difficult and complex but sometimes necessary act. Advocates that favor more disclosure and advocates that favor more privacy both have many legitimate arguments and concerns. This article argues that when viewed in the context of contemporary capital markets, the enhanced role of the executive, and the modern media, additional disclosure from executives about material, private matters is desirable. In support of this argument, this article proposes a principle-based approach for executive disclosure that affords companies and executives reasonable deference on what to disclose and how to disclose it, while simultaneously …

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Technology And Intellectual Property: New Rules For An Old Game?, Elizabeth A. Rowe Jan 2009

Technology And Intellectual Property: New Rules For An Old Game?, Elizabeth A. Rowe

UF Law Faculty Publications

This foreword to the first issue of 2009 for the Journal of Technology Law and Policy discusses the questions presented by the merger of technology and intellectual property and considers how best the two areas should co-exist.

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Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Barnett Lidsky Jan 2009

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous "John Doe" defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire, and other nonfactual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

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Limiting Anticompetitive Government Interventions That Benefit Special Interests, D. Daniel Sokol Jan 2009

Limiting Anticompetitive Government Interventions That Benefit Special Interests, D. Daniel Sokol

UF Law Faculty Publications

When government regulates, it may either intentionally or unintentionally generate restraints that reduce competition ("public restraints"). Public restraints allow a business to cloak its action in government authority and to immunize it from antitrust regulation. Private businesses may misuse the government's grant of antitrust immunity to facilitate behavior that benefits businesses at consumers' expense. One way is by obtaining government grants of immunity from antitrust scrutiny. A recent series of Supreme Court decisions has made this situation worse by limiting the reach of antitrust law in favor of sector regulation. This is true even though the Supreme Court refers to …

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Challenging Monohumanism: An Argument For Changing The Way We Think About Intercountry Adoption, Shani M. King Jan 2009

Challenging Monohumanism: An Argument For Changing The Way We Think About Intercountry Adoption, Shani M. King

UF Law Faculty Publications

The Convention on the Rights of the Child' (CRC) provides a legal framework that establishes a child's right to be raised in the context of her family and her culture. We regularly violate this most fundamental right of children because we fail to come to terms with our imperialist orientation toward the world. This failure has been caused, in part, by how we have constructed our way of thinking about intercountry adoption. We now have a conception of intercountry adoption that I refer to in this Article as MonoHumanism. In the context of intercountry adoption, MonoHumanism means that children …

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Insider Trading In Congress: The Need For Regulation, Matthew Barbabella, Daniel Cohen, Alex Kardon, Peter Molk Jan 2009

Insider Trading In Congress: The Need For Regulation, Matthew Barbabella, Daniel Cohen, Alex Kardon, Peter Molk

UF Law Faculty Publications

Is regulation of Congressional insider trading desirable? We intend to use the STOCK Act (H.R. 682) as a springboard for approaching the need for Congressional insider trading regulation from a slightly more academic perspective. First, we describe the STOCK Act by placing it in recent historical context. Understanding the motivation to reform Congressional ethics that existed earlier this decade is crucial to evaluating the STOCK Act and its prospects for eventual passage by Congress. Second, we review the body of insider trading law that already operates to restrain corporate insiders and others from making some trades. The most important SEC …

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Wal-Mart In The Garden District: Does The Arbitrary And Capricious Standard Of Review In Nepa Cases Undermine Citizen Participation?, Dawn E. Jourdan, Kevin Gifford Jan 2009

Wal-Mart In The Garden District: Does The Arbitrary And Capricious Standard Of Review In Nepa Cases Undermine Citizen Participation?, Dawn E. Jourdan, Kevin Gifford

UF Law Faculty Publications

The National Environmental Policy Act (NEPA), enacted in 1969, requires that agencies of the U.S. government or those seeking to use federal funds to construct projects study the environmental and social impacts of said projects. Under the provisions of NEPA, a first-level review must be conducted for all projects not otherwise exempted. If the entity conducting the review deems that the project will result in a significant impact on humans or the environment, an environmental impact statement (EIS) must be prepared. The decision about whether or not to prepare an EIS can be controversial due to the fact that the …

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Measuring Compliance With Compulsory Licensing Remedies In The American Microsoft Case, William H. Page, Seldon J. Childers Jan 2009

Measuring Compliance With Compulsory Licensing Remedies In The American Microsoft Case, William H. Page, Seldon J. Childers

UF Law Faculty Publications

Section III.E of the final judgments in the American Microsoft case requires Microsoft to make available to software developers certain communications protocols that Windows client operating systems use to interoperate with Microsoft's server operating systems. This provision has been by far the most difficult and costly to implement, primarily because of questions about the quality of Microsoft's documentation of the protocols. The plaintiffs' technical experts, in testing the documentation, have found numerous issues, which they have asked Microsoft to resolve. Because of accumulation of unresolved issues, the parties agreed in 2006 to extend Section III.E for up to five more …

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Race, Identity, And Professional Responsibility: Why Legal Services Organizations Need African American Staff Attorneys, Shani M. King Jan 2009

Race, Identity, And Professional Responsibility: Why Legal Services Organizations Need African American Staff Attorneys, Shani M. King

UF Law Faculty Publications

Given the fundamental importance of the attorney-client relationship in securing favorable outcomes for clients, legal services organizations that serve large populations of African Americans should employ African American staff attorneys because: (1) African American lawyers and clients share a group identity that makes it more likely that a black attorney will be able to gain a black client's trust; (2) black attorneys communicate more effectively with black clients; and (3) the perception of a judicial system that is unfair and racist is likely to encourage black clients to trust black lawyers more than white lawyers, who are more likely to …

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Stumbling Toward Success: A Story Of Adaptive Law And Ecological Resilience, Mary Jane Angelo Jan 2009

Stumbling Toward Success: A Story Of Adaptive Law And Ecological Resilience, Mary Jane Angelo

UF Law Faculty Publications

For decades, scientific and legal scholars alike have promoted the concept of "adaptive management" as a necessary approach to meaningful environmental management, restoration, and regulation. Unfortunately, adaptive management success stories are few and far between. The Lake Apopka Restoration Project provides a real-world illustration of adaptive management at work. This article uses adaptive management theory to explore mechanisms to make environmental law better able to address the uncertainties and changing nature of natural systems to restore and protect ecological resilience.

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