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Articles 1 - 30 of 53
Full-Text Articles in Law
Taxing Book Profits: New Proposals And 40 Years Of Critiques, Mindy Herzfeld
Taxing Book Profits: New Proposals And 40 Years Of Critiques, Mindy Herzfeld
UF Law Faculty Publications
This paper considers recent domestic and international proposals to use financial statement earnings as the basis for imposing additional or minimum taxes on corporate income and to reallocate corporate profits among jurisdictions. It reviews prior research undertaken in the context of previous proposals to partially substitute financial accounts for taxable income and considers how valid critiques of prior proposals are with respect to current initiatives. It concludes by noting that the concerns raised about earlier proposals have neither been fully considered nor addressed in the recent initiatives.
Negative Identity And Conflict, Jonathan R. Cohen
Negative Identity And Conflict, Jonathan R. Cohen
UF Law Faculty Publications
This article explores an aspect of identity that can be particularly challenging for conflict resolution—negative identity. By negative identity, I mean an identity in which a party implicitly or explicitly defines itself in a negative way, specifically, by way of contrast to some other party. This phenomenon occurs in conflicts ranging from small, interpersonal ones to large-scale conflicts between national, ethnic, and religious groups. Negative identities may make conflicts more likely to arise and also make them more difficult to resolve when they do. Fortunately, there are steps that both parties and neutrals can take to foster conflict resolution in …
Check State: Avoiding Preemption By Using Incentives, Michael Allan Wolf
Check State: Avoiding Preemption By Using Incentives, Michael Allan Wolf
UF Law Faculty Publications
No abstract provided.
The Spurious Allure Of Pass-Through Parity, Karen C. Burke
The Spurious Allure Of Pass-Through Parity, Karen C. Burke
UF Law Faculty Publications
In 2017, Congress reduced tax rates on both corporate and noncorporate income. The drafters invoked the concept of pass-through parity to justify lower rates on noncorporate business income, resulting in a new and highly controversial deduction for pass-through owners under § 199A. The concept of pass-through parity conflates equitable treatment of different entity forms with equitable distribution of the ultimate tax burden among labor and capital. The flawed rationale for § 199A may be viewed as an attempt to preserve the pre-2017 preference for pass-through income; conceptually, the advantage of lower corporate rates is limited to the availability of a …
Children’S Equality Rights: Every Child’S Right To Develop To Their Full Capacity, Nancy E. Dowd
Children’S Equality Rights: Every Child’S Right To Develop To Their Full Capacity, Nancy E. Dowd
UF Law Faculty Publications
Children are born equal. Yet as early as eighteen months, hierarchies emerge among children. These hierarchies are not random but fall into patterns by race, gender and class. They are not caused nor voluntarily chosen by children or their parents. The hierarchies grow, persist, and are made worse by systems and policies created by the state, perpetuating the position of the privileged and continuing the disadvantage of the subordinated. Children’s equal right to develop to their capacity is severely undermined by policies and structures that hamper and block the development of some by creating barriers and challenges or failing to …
The New Enforcement Regime: Revisiting The Law Of Employee Competition (And The Scholarship Of Professor Charles Sullivan) With 2020 Vision, Rachel Arnow-Richman
The New Enforcement Regime: Revisiting The Law Of Employee Competition (And The Scholarship Of Professor Charles Sullivan) With 2020 Vision, Rachel Arnow-Richman
UF Law Faculty Publications
This Article, prepared for Seton Hall Law School’s 2019 Symposium on the scholarship of Professor Charles Sullivan, labels and critiques “the new enforcement regime” in employee mobility law. For centuries, employee noncompetes have been regulated primarily through the common law rule of reason. The last decade, however, has witnessed a surge in public initiatives seeking to restrict employers’ use and enforcement of these agreements. They include proposed legislation, regulatory undertakings, class action litigation, and state enforcement programs that seek reforms ranging from an end to the use of noncompetes with vulnerable workers to the outright prohibition of all forms of …
Minding The Gaps In Regulation Of Do-It-Yourself Biotechnology, Barbara J. Evans
Minding The Gaps In Regulation Of Do-It-Yourself Biotechnology, Barbara J. Evans
UF Law Faculty Publications
This Symposium confronts the reality that genetic technologies – not just genetic tests, but tools for altering plant, animal, and human genomes – are rapidly becoming and indeed already are consumer technologies. People can experiment with and apply these technologies in disintermediated formats, potentially without the involvement of national research funding agencies, professional scientists, physicians, genetic counselors, regulators, and traditional medical product manufacturers. The framework of 20th -century medical product and practice regulations assigned each of these parties a role in promoting ethical, safe, and effective biomedical research and health care. Do-it-yourself biotechnology (DIYbio), which includes direct-to-consumer (DTC) and do-it-yourself …
Judging And Baseball, Merritt E. Mcalister
Judging And Baseball, Merritt E. Mcalister
UF Law Faculty Publications
No abstract provided.
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
UF Law Faculty Publications
This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …
Is Solitary Confinement A Punishment?, John F. Stinneford
Is Solitary Confinement A Punishment?, John F. Stinneford
UF Law Faculty Publications
The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding …
The Unwritten Rules Of Liberal Democracy, Charles W. Collier
The Unwritten Rules Of Liberal Democracy, Charles W. Collier
UF Law Faculty Publications
This Article is set amidst the distinctly unsettled and unsettling state of governmental practices, legislative policy, and presidential politics of contemporary America. Immediacy, too, introduces its own uncertainty—as compared to the comfortable vantage point of the distant future. But, as I shall argue, there is no realistic alternative to beginning in medias res. To address these issues as they inherently demand, the usual precedents and protocols and precautions must be set aside—if they are not already “gone with the wind.”6 Since the 2016 Presidential Election, and even before, threats to liberal democracy have emerged, in plausible form, as never before …
Bundled Discounts, Loyalty Discounts And Antitrust Policy, Roger D. Blair, Thomas Knight
Bundled Discounts, Loyalty Discounts And Antitrust Policy, Roger D. Blair, Thomas Knight
UF Law Faculty Publications
In this paper, we explore the competitive significance of both bundled and loyalty discounts. The paper proceeds as follows. In Section II, we examine the antitrust treatment of both bundled discounts and loyalty discounts in the United States. In Section III, we examine bundled discounts and discuss their competitive significance. In Section IV, we examine loyalty discounts as well as their competitive significance. In Section V, we suggest that the courts evaluate bundled discounts and loyalty discounts under the Rule of Reason. In Section VI, we close with some concluding remarks and policy recommendations.
Children's Equality: Strategizing A New Deal For Children, Nancy E. Dowd
Children's Equality: Strategizing A New Deal For Children, Nancy E. Dowd
UF Law Faculty Publications
It is the ultimate gift to have one’s work trigger feedback, critique and challenge that expands and deepens the project. Professors Cooper, Huntington, McGinley, Silbaugh, and Woodhouse all have been sources of inspiration for me; their Articles and Essays in response to Reimagining Equality contribute both to my thinking and to the core focus of the book, the well-being, development and equality of all children, but also to the broad focus of this special issue on children and poverty. I am particularly grateful for their challenges and critiques, and their shared focus on the strategies I explore in the book, …
Rethinking The Efficiency Of The Common Law, D. Daniel Sokol
Rethinking The Efficiency Of The Common Law, D. Daniel Sokol
UF Law Faculty Publications
This Article shows how Posner and other scholars who claimed that common law was efficient misunderstood the structure of common law. If common law was more efficient, there would have been a noticeable push across most, if not all, doctrines to greater efficiency. This has not been the case. Rather, common law, better recast as a “platform,” could, under a certain set of parameters, lead to efficient outcomes. Next, the Article’s analysis suggests that while not every judge thinks about efficiency in decision-making, there must be some architectural or governance feature pushing in the direction of efficiency — which exists …
Artificial Intelligence And Climate Change, Amy L. Stein
Artificial Intelligence And Climate Change, Amy L. Stein
UF Law Faculty Publications
As artificial intelligence (AI) continues to embed itself in our daily lives, many focus on the threats it poses to privacy, security, due process, and democracy itself. But beyond these legitimate concerns, AI promises to optimize activities, increase efficiency, and enhance the accuracy and efficacy of the many aspects of society relying on predictions and likelihoods. In short, its most promising applications may come, not from uses affecting civil liberties and the social fabric of our society, but from those particularly complex technical problems lying beyond our ready human capacity. Climate change is one such complex problem, requiring fundamental changes …
Contracting For Confidential Discovery, Seth Katsuya Endo
Contracting For Confidential Discovery, Seth Katsuya Endo
UF Law Faculty Publications
One way that courts have adapted to the age of the internet is to provide nearly instant online access to their dockets. But many important filings remain shielded from public view as courts regularly issue stipulated protective orders at the request of the parties. And, while the costs and benefits of confidential discovery have been extensively discussed in the academic literature, several important contextual developments — including the continuing growth of electronically stored information — prompt a reexamination. Additionally, easily searchable federal dockets now provide a window into what is happening in actual practice.
Taking up this task, Contracting for …
Regulate Physician Restrictive Covenants To Improve Healthcare, Judy Ann Clausen
Regulate Physician Restrictive Covenants To Improve Healthcare, Judy Ann Clausen
UF Law Faculty Publications
The U.S. healthcare reform agenda seeks to expand patient choice and access, improve quality, and control costs. This Article argues these goals should govern enforceability of physician non-compete and non-solicitation agreements (restrictive covenants). Most jurisdictions apply a reasonableness test to assess the enforceability of physician restrictive covenants. Some jurisdictions hold physician non-competes per se invalid. Courts applying the reasonableness test often disrupt continuity of care and harm patients; continuity of care is key to patient health. Moreover, physicians departing a practice have an ethical obligation to notify patients of the physician's departure and how to transfer to the physician's new …
The Politics Of Pregnancy Accommodation, Stephanie Bornstein
The Politics Of Pregnancy Accommodation, Stephanie Bornstein
UF Law Faculty Publications
How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by …
Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert
Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert
UF Law Faculty Publications
Using the United States Supreme Court’s 2019 rulings in Manhattan Community Access Corp. v. Halleck, Nieves v. Bartlett, and Iancu v. Brunetti as analytical springboards, this Article explores multiple fractures among the Justices affecting the First Amendment freedoms of speech and press. All three cases involved dissents, with two cases each spawning five opinions. The clefts compound problems witnessed in 2018 with a pair of five-to-four decisions in National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. Partisan divides, the Article argues, are only one problem with First Amendment …
Deadly Delay: The Fda's Role In America's Covid-Testing Debacle, Barbara J. Evans, Ellen Wright Clayton
Deadly Delay: The Fda's Role In America's Covid-Testing Debacle, Barbara J. Evans, Ellen Wright Clayton
UF Law Faculty Publications
In response to the COVID-19 pandemic, the U.S. Food and Drug Administration (FDA) published a series of 2020 guidance documents on how to seek Emergency Use Authorizations (EUAs) for new SARS-CoV-2 tests. These guidance documents suggest EUAs are needed for laboratory-developed tests (LDTs), a type of test created and used in-house by high-complexity clinical laboratories that already are regulated by the Clinical Laboratory Improvement Amendments of 1988 (CLIA). These CLIA-regulated laboratories traditionally have provided a rapid response to emerging epidemics. Many laboratories viewed the FDA’s 2020 guidance documents as having a practical binding effect even though the FDA lacked clear …
"Downright Indifference": Examining Unpublished Decisions In The Federal Courts Of Appeals, Merritt E. Mcalister
"Downright Indifference": Examining Unpublished Decisions In The Federal Courts Of Appeals, Merritt E. Mcalister
UF Law Faculty Publications
Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.” The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate …
Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt
Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt
UF Law Faculty Publications
Will construction—the process wherein a trier of fact must determine the testator’s probable intent because the testator’s actual intent is not clear—is too little discussed and too often misunderstood in succession law jurisprudence. Yet, construction issues are becoming increasingly important due to a growing number of will and trust disputes concerning the determination of beneficiaries in a post-Obergefell United States. Currently, courts are being asked to construe terms like “spouse,” “husband,” “wife,” “child,” “son,” “daughter,” and “descendants” in estate planning documents during a time in which understandings of marriage, identity, reproduction, religious liberty, and public policy are rapidly evolving. Interestingly, …
The Soul Savers: A 21st Century Homage To Derrick Bell’S Space Traders Or Should Black People Leave America?, Katheryn Russell-Brown
The Soul Savers: A 21st Century Homage To Derrick Bell’S Space Traders Or Should Black People Leave America?, Katheryn Russell-Brown
UF Law Faculty Publications
Narrative storytelling is a staple of legal jurisprudence. The Case of the Speluncean Explorers by Lon Fuller and The Space Traders by Derrick Bell are two of the most well-known and celebrated legal stories. The Soul Savers parable that follows pays tribute to Professor Bell’s prescient, apocalyptic racial tale. Professor Bell, a founding member of Critical Race Theory, wrote The Space Traders to instigate discussions about America’s deeply rooted entanglements with race and racism. The Soul Savers is offered as an attempt to follow in Professor Bell’s narrative footsteps by raising and pondering new and old frameworks about the rule …
White Privilege: What It Is, What It Is Not, And How It Shapes American Discussions Of Policing And Historical Iconography, Neil H. Buchanan
White Privilege: What It Is, What It Is Not, And How It Shapes American Discussions Of Policing And Historical Iconography, Neil H. Buchanan
UF Law Faculty Publications
What is White privilege? In this Essay, I explore the privileges that White men take for granted in dealing with the police, even as I acknowledge that the most privileged Americans are still potentially subject to arbitrary and unaccountable police abuses. I also examine the debate over changing the names of places in the United States, as well as taking down the statues of the people who have long been treated as heroes, including the founding generation. The common thread between these two topics is that privilege allows White people not even to notice when they receive favorable treatment. They …
Children's Equality: The Centrality Of Race, Gender, And Class, Nancy E. Dowd
Children's Equality: The Centrality Of Race, Gender, And Class, Nancy E. Dowd
UF Law Faculty Publications
Hierarchies among children dramatically impact their development. Beginning before birth, and continuing during their progression to adulthood from birth to age 18, structural and cultural barriers separate and subordinate some children, while they privilege others. The hierarchies replicate patterns of inequality along familiar lines, particularly those of race, gender, and class, and the intersections of those identities. These barriers, and co-occurring support of privilege for other children, emanate from policies, practices, and structures of the state, including education, health, policing and juvenile justice, and limited social welfare. Reimagining Equality: A New Deal for Children of Color takes on the task …
Finding Balance, Forging A Legacy: Harassers’ Rights And Employer Best Practices In The Era Of Metoo, Rachel Arnow-Richman
Finding Balance, Forging A Legacy: Harassers’ Rights And Employer Best Practices In The Era Of Metoo, Rachel Arnow-Richman
UF Law Faculty Publications
This article, prepared for the Annual Jack Pemberton Lecture on Workplace Justice, calls for the development of best practices for handling accused harassers in response to the MeToo movement. It contends that much of MeToo’s legacy will be determined by the voluntary choices of employers as they implement new policies and practices surrounding sexual harassment. It is therefore crucial that employers gain a better understanding of the nature and scope of sexual harassment and the risks of both over- and under-enforcement of anti-harassment norms. Through analysis of Harvey Weinstein’s final contract as Co-Chairman of the Weinstein Companies, the article juxtaposes …
Integrated Learning, Integrated Faculty, Rachel Arnow-Richman
Integrated Learning, Integrated Faculty, Rachel Arnow-Richman
UF Law Faculty Publications
A fundamental obstacle to the success of legal education’s practice readiness movement is the “bifurcated faculty.” Most law schools continue to operate a two tiered system in which a group of elite credentialed “doctrinal” faculty enjoy the generous compensation, security, and privileges associated with tenure, while an underclass of contract faculty teach work intensive “skills” courses for lower pay and lesser status. This Essay analyzes the bifurcated faculty as a personnel practice, leveraging insights from management theory and employment discrimination scholarship to evaluate law schools as employers. It considers, first, the rise of new economy management practices that eschew static …
Escaping Doctrinal Lockboxes In First Amendment Jurisprudence: Workarounds For Strict Scrutiny For Low-Value Speech In The Face Of Stevens And Reed, Clay Calvert
UF Law Faculty Publications
The United States Supreme Court’s 2010 opinion in the crush-video case of United States v. Stevens made it extremely difficult to declare new varieties of low-value speech unprotected by the First Amendment. Five years later, the Court’s sign-ordinance ruling in Reed v. Town of Gilbert made it exceedingly tough for facially content-based regulations imposed on presumptively protected speech to be analyzed by any standard of judicial review less rigorous than the demanding strict scrutiny test. This Article examines how some courts today, despite being hemmed in by the strictures of both Stevens and Reed, are creatively unearthing novel ways to …
Troll Storms And Tort Liability For Speech Urging Action By Others: A First Amendment Analysis And An Initial Step Toward A Federal Rule, Clay Calvert
UF Law Faculty Publications
This Commentary examines when, consistent with First Amendment principles of free expression, speakers can be held tortiously responsible for the actions of others with whom they have no contractual or employer-employee relationship. It argues that recent lawsuits against Daily Stormer publisher Andrew Anglin for sparking “troll storms” provide a timely analytical springboard into the issue of vicarious tort liability. Furthermore, such liability is particularly problematic when a speaker’s message urging action does not fall into an unprotected category of expression, such as incitement or true threats, and thus, were it not for tort law, would be fully protected. In examining …
After Forty Years Of Antitrust Revision And Apple V. Pepper, What Now Illinois Brick?, Jeffrey L. Harrison
After Forty Years Of Antitrust Revision And Apple V. Pepper, What Now Illinois Brick?, Jeffrey L. Harrison
UF Law Faculty Publications
Nineteen seventy-seven was a paradigm-shifting year in antitrust law. Decisions by the Supreme Court greatly limited the type of parties who could successfully bring antitrust actions and what types of activities would violate the antitrust laws. First, in January of that year, the Court, in Brunswick v. Pueblo Bowl-O-Mat, ruled that to mount a case the plaintiff had to have suffered an antitrust injury. In other words, even if the antitrust laws were violated, the party raising the issue had to have suffered the type of harm the laws were designed to avoid. Then in a fourteen day span the …