Law Commons^™

An Empirical Analysis Of Diversity In The Legal Profession, Jason P. Nance, Paul E. Madsen

UF Law Faculty Publications

The purpose of this Study is to empirically examine the diversity of the legal profession. The primary distinctive features of this empirical analysis are that it evaluates diversity in the legal profession by (a) carefully comparing it against other prestigious professions that have significant barriers to entry, and (b) focusing on young individuals who recently began their careers. These distinctions are made to isolate anomalies that are more likely caused by forces specific to the legal profession rather than general social forces that limit the eligibility of historically disadvantaged groups to pursue prestigious employment opportunities. Further, by narrowing our focus …

Death, Desuetude, And Original Meaning, John F. Stinneford

UF Law Faculty Publications

One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …

Federal Visions Of Private Family Support, Laura A. Rosenbury

UF Law Faculty Publications

This Article offers a new perspective on the relationship between family and federalism by analyzing why the government — whether state or federal — recognizes family at all. The Article examines the current balance between state and federal authority over family by reviewing the Supreme Court’s recent decisions in Astrue v. Capato, upholding the Social Security Administration’s deference to states’ intestacy laws when distributing benefits to posthumously conceived children, and United States v. Windsor, in which the Court struck down a provision of the federal Defense of Marriage Act. Although each decision affirmed the states’ primary role in defining family …

Ecosystem Services Valuation For Estuarine And Coastal Restoration In Florida, Susanna Blair, Carrie Adams, Thomas T. Ankersen, Maia Mcguire, David Kaplan

UF Law Faculty Publications

This study reviews the available ecosystem-service valuation literature for a number of Florida's coastal natural communities including oyster reefs, beach dunes, mangrove forests, seagrass beds, and salt marshes. We summarize the services provided by these five commonly restored natural communities in Florida and provide an analysis intended to support two main objectives: 1) to enumerate the range of ecosystem services provided by coastal natural communities as a way to educate stakeholders and support prioritization of habitat restoration; and 2) to inventory ecosystem measurements from the literature for each of the five natural communities and provide specific metrics for their measurement. …

Reconciling Tax Law And Securities Regulation, Omri Y. Marian

UF Law Faculty Publications

Issuers in registered securities offerings must disclose the expected tax consequences to investors investing in the offered securities (“nonfinancial tax disclosure”). This Article advances three arguments regarding nonfinancial tax disclosures. First, nonfinancial tax disclosure practice, as the Securities and Exchange Commission (the SEC) has sanctioned it, does not fulfill its intended regulatory purposes. Currently, nonfinancial tax disclosures provide irrelevant information, sometimes fail to provide material information, create unnecessary transaction costs, and divert valuable administrative resources to the enforcement of largely-meaningless requirements. Second, the practical reason for this failure is the SEC and tax practitioners’ unsuccessful attempt to address investors’ heterogeneous …

The Oecd’S Flawed And Dated Approach To Computer Servers Creating Permanent Establishments, Monica Gianni

UF Law Faculty Publications

As the digital economy changes the way that we do business, tax laws have been challenged to adapt appropriately to this nontraditional business method. International tax rules were developed in a different technological era. To accommodate electronic commerce, existing tax rules either have to be applied to electronic-commerce transactions, or new rules have to be developed. The Organisation for Economic Co-operation and Development (OECD) has taken the lead in studying and recommending appropriate international taxation rules for electronic commerce.

This Article focuses on the original central tax issue that the OECD considered—jurisdiction to tax income from electronic commerce based on …

Rights In Recession: Toward Administrative Antidiscrimination Law, Stephanie Bornstein

UF Law Faculty Publications

This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, …

The Ties That Bind: Reevaluating The Role Of Legal Presumptions Of Paternity, Heather Kolinsky

UF Law Faculty Publications

As Justice Brennan observed in Michael H. v. Gerald D. so many years ago, we must "identify the point at which a tradition becomes firm enough to be relevant to our definition of liberty and the moment at which it becomes too obsolete to be relevant any longer." This Article addresses one such tradition, the legal presumption of paternity, and examines it through the lens of equal protection, the changing roles of fatherhood, and the evolution of marriage.

The concept of who is a parent must change to both satisfy equal protection as well as modern scientific and societal realties. …

Stop Me If You’Ve Heard This Before: Transitions In Teaching Legal Research, Patricia Morgan

UF Law Faculty Publications

Law schools are being called upon to produce more “practice ready” graduates. To that end, the University of Florida added a librarian-taught first-year Legal Research course to its curriculum. As a result of the course addition, there was an impact on the existing Advanced Legal Research (ALR) course. For the first time, the ALR students had already received legal research instruction. This required adjustments in this higher level course.

Whole-System Agricultural Certification: Using Lessons Learned From Leed To Build A Resilient Agricultural System To Adapt To Climate Change, Mary Jane Angelo, Joanna Reilly-Brown

UF Law Faculty Publications

This Article proposes a novel approach to addressing global climate change's impacts on agricultural production and food security. The climate change crisis is the most significant environmental issue facing our planet. The changes predicted to occur as the earth's climate warms include significant impacts to agriculture. At the same time that the planet is undergoing dramatic climatic changes, the global population is increasing, and economic development in many parts of the world is exerting increased demand for a greater and more diverse supply of food.

The relationship between climate change and agriculture is a close and complex one, as the …

Federalism, Diversity, Equality, And Article Iii Judges: Geography, Identity, And Bias, Sharon E. Rush

UF Law Faculty Publications

Each individual has a background, and that background shapes the individual’s views about life, creating an inevitable form of bias referred to as “experiential bias.” Experiential bias is shaped by many identity traits, including, among others, race, sex, sexual orientation, religion and even geography. The geographic identity of state judges and their potential unfair experiential bias is the common justification for federal court diversity jurisdiction. But experiential bias is inescapable, affecting everyone who's ever had an experience, and is generally not unfair, as demonstrated by most studies regarding the "fairness" justification for diversity jurisdiction. More recently, Justice O’Connor connected racial …

Maintaining A Healthy Water Supply While Growing A Healthy Food Supply: Legal Tools For Cleaning Up Agricultural Water Pollution, Mary Jane Angelo, Jon Morris

UF Law Faculty Publications

This article will explore a number of legal mechanisms that could play a role in ensuring that discharges from agricultural activities do not cause or contribute to violations of water quality standards. Specifically, this article will evaluate the relative effectiveness of: (1) narrative nutrient criteria as compared with numeric nutrient criteria; (2) Total Maximum Daily Load (TMDL) implementation through regulatory and non-regulatory mechanisms; and (3) the relative efficacy of design-based standards such as Best Management Practices (BMPs) and performance-based standards in reducing water pollution from agriculture. The article will draw on experiences from the State of Florida, including Everglades' restoration …

Globally Speaking - Honoring The Victims' Stories: Matsuda's Human Rights Praxis, Berta E. Hernández-Truyol

UF Law Faculty Publications

Globally speaking, international law and the vast majority of domestic legal systems strive to protect the right to freedom of expression. The United States’ First Amendment provides an early historical protection of speech—a safeguard now embraced around the world. The extent of this protection, however, varies among states.

The United States stands alone in excluding countervailing considerations of equality, dignitary, or privacy interests that would favor restrictions on speech. The gravamen of the argument supporting such American exceptionalism is that free expression is necessary in a democracy. Totalitarianism, the libertarian narrative goes, thrives on government control of information to the …

Conditions Of Confinement At Sentencing: The Case Of Seriously Disordered Offenders, E. Lea Johnston

UF Law Faculty Publications

At sentencing, a judge can often foresee that an individual, given his major mental disorder and other vulnerabilities, will experience serious harm in prison. These harms may include psychological deterioration and mental distress, attempted suicide, or victimization by staff or other inmates. In response, some jurisdictions allow a judge to commit a disordered offender for treatment in lieu of incarceration, while others designate need for treatment and undue offender hardship as mitigating factors for use at sentencing. None of these measures, however, goes far enough to protect vulnerable prisoners.

This Article builds a case for expanding judges’ sentencing power by …

Reconsidering Regulatory Uncertainty: Making A Case For Energy Storage, Amy L. Stein

UF Law Faculty Publications

This Article begins the complex dialogue that must take place to address the emerging technologies providing energy storage for our electricity grid. Energy storage has the capacity to be a game-changer for many facets of our grid, providing better integration of renewable energy, enhanced reliability, and reduced use of carbon-intensive fuels. Energy storage faces a number of obstacles, however, including technological, financial, and regulatory uncertainty. This Article focuses on the regulatory uncertainty, and defends the proposition that not all regulatory uncertainty is created equal. It argues for differential treatment of this uncertainty, depending on its context, scope, and source, and …

Climate Change And Water Transfers, Jesse Reiblich, Christine A. Klein

UF Law Faculty Publications

Climate change adaptation is all about water. Although some governments have begun to plan for severe water disruptions, many have not. The consequences of inaction, however, may be dire. As a report of the U.N. Environment Programme warns, “countries that adopt a ‘wait and see’ approach potentially risk the lives of their people, their ecosystems and their economies.” In the United States, according to one study, nearly 60% of the states are unprepared to deal with the impending crisis. Responding to this void, we offer what we believe is the first comprehensive, fifty-state survey of water allocation law and its …

The Implausibility Of Secrecy, Mark Fenster

UF Law Faculty Publications

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events — among them the WikiLeaks episode, the Obama administration’s infamous leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters — undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, and open sources all …

Judging Monopolistic Pricing: F/Rand And Antitrust Injury, William H. Page

UF Law Faculty Publications

In a 2013 opinion in Microsoft v. Motorola, Judge James Robart calculated “reasonable and nondiscriminatory” or RAND royalties that Motorola could lawfully charge Microsoft for licenses to use Motorola patents that were essential to two industry standards. Although the case involved only a claim for breach of contract, Judge Robart’s opinion regulated monopoly pricing, a task courts try to avoid in other contexts, claiming institutional incapacity. In this instance, however, Judge Robart identified standards that he believed adequately guided him in the task. He recognized that the economic purposes of the RAND commitment were to prevent owners of standards-essential patents …

Culture Clashes: Indigenous Populations And Globalization-The Case Of Belo Monte, Berta E. Hernández-Truyol

UF Law Faculty Publications

There exists a significant schism between the world of indigenous persons and the process of globalization. To resolve conflicts at the intersection of these divergent worlds, it is imperative to develop a paradigm that recognizes the trade and human rights discourses are intertwined parts of the larger legal and human universe. Such a framework will enable a bridge between the spheres that will benefit humanity so the world will be not only a richer place, but also a better place.

The Law And Economics Of (Functional) Antitrust Standing In The United States And The European Union, Jeffrey L. Harrison

UF Law Faculty Publications

To date, and despite pressures toward convergence, the United States and the European Union have taken different paths with respect to the enforcement of antitrust laws by private parties and, therefore, differ dramatically in levels of functional standing. U.S. law is more encouraging to private enforcement than E.U. law but has a narrower view of whom those private parties are permitted to be. In the European Union, the eligible parties are broad but the motivation of any single party to bring an action is quite low. In the United States, the substantive law and much of the procedural law flow …

A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison

UF Law Faculty Publications

This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated by others. Plus, in my view the law and economics concepts they seem to rely on lost their legitimacy years ago. Their article was the catalyst for this broader examination of forty years of writing about the efficient breach and an assessment of where it has …

"Not Without Political Power": Gays And Lesbians, Equal Protection, Darren Lenard Hutchinson

UF Law Faculty Publications

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs. A growing body of and federal and state-court precedent addresses the flaws of the Court's suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

UF Law Faculty Publications

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

Dispatches From The Trenches Of America's Great Gun Trust Wars, Lee-Ford Tritt

UF Law Faculty Publications

Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a “gun trust.” Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national …

School Surveillance And The Fourth Amendment, Jason P. Nance

UF Law Faculty Publications

In the aftermath of several highly-publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their school than other students, even after taking into account factors such as neighborhood crime, school …

“Antitrust's Least Glorious Hour”: The Robinson-Patman Act, Roger D. Blair, Christina Depasquale

UF Law Faculty Publications

In The Antitrust Paradox, Robert Bork explored many of antitrust’s misadventures. Specifically, Bork severely criticized the Robinson-Patman Act, which he characterized as “antitrust’s least glorious hour.” In this paper, we explore Bork’s criticism of the Robinson-Patman Act along with those of other legal scholars and economists. We analyze the central prohibitions of the act and explore their competitive implications. We also show that the act’s unfortunate prohibitions have been muted by the antitrust agencies’ benign neglect and three recent Supreme Court decisions.

The Puzzling Lack Of Cooperatives, Peter Molk

UF Law Faculty Publications

Some of the most recognizable companies, including Land O'Lakes, REI, the Associated Press, Ace Hardware, and State Farm Insurance, are organized as cooperatives--firms owned by their suppliers, workers, or customers. Yet aside from isolated areas of the economy, cooperatives constitute only a small portion of American enterprise, which is otherwise dominated by investor-owned firms. Conventional wisdom assumes that firms either start as cooperatives or convert to cooperatives when cooperatives offer the highest ongoing benefits to owners, and it explains the lack of cooperatives by suggesting that cooperatives usually do not maximize ongoing benefits. This Article looks at entrepreneurs' and brokers' …

Borrowing By Any Other Name: Why Presidential "Spending Cuts" Would Still Exceed The Debt Ceiling, Neil H. Buchanan, Michael C. Dorf

UF Law Faculty Publications

On three occasions since mid-2011, the United States has come perilously close to exhausting its borrowing authority under a statutory limit commonly called the "debt ceiling." In prior work, the current authors argued that, in the event that the debt ceiling is reached, the President will face a "trilemma" in which any realistic action he takes — defaulting on government obligations, raising taxes, or issuing debt in excess of the statutory ceiling — would unconstitutionally usurp legislative power. We argued that in such circumstances, violating the debt ceiling would be the "least unconstitutional option." Nonetheless, most pundits and politicians, including …

House Swaps: A Strategic Bankruptcy Solution To The Foreclosure Crisis, Lynn M. Lopucki

UF Law Faculty Publications

Since the price peak in 2006, home values have fallen more than 30%, leaving millions of Americans with negative equity in their homes. Until the Supreme Court’s 1993 decision in Nobelman v. American Savings Bank, the bankruptcy system would have provided many such homeowners with a remedy. They could have filed bankruptcy, discharged the negative equity, committed to pay the mortgage holders the full values of their homes, and retained those homes. In Nobelman, the Court misinterpreted reasonably clear statutory language and invented legislative history to resolve a 3-1 split of circuits in favor of the minority view. The Court …

Pfics Gone Wild!, Monica Gianni

UF Law Faculty Publications

This article discusses the U.S. tax rules for passive foreign investment companies, or PFICs. The historical development leading up to the enactment of the PFIC rules in 1986 is examined. Unexpected tax consequences resulting from the PFIC rules are analyzed in detail. Recommendations to modify the rules so that they do have such onerous consequences follow, concluding that the PFIC rules cannot be sufficiently fixed and should be repealed.