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2012

Series

University of Florida Levin College of Law

Articles 1 - 30 of 61

Full-Text Articles in Law

Water Bankruptcy, Christine A. Klein Dec 2012

Water Bankruptcy, Christine A. Klein

UF Law Faculty Publications

Many western states are on the verge of bankruptcy, with debts exceeding assets. And yet, they continue to take on additional debt through contracts and other commitments. Although this distress sounds like an outgrowth of the 2008 recession, this crisis involves water, not money. In particular, the problem concerns the western prior appropriation system of water law, which allocates the right to use water under the priority principle of “first in time, first in right.” In many states, the system is so “over-allocated” that it promises to deliver annually much more water than nature provides. The crisis will deepen as …

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Choosing Among Innocents: Should Donations To Charities Be Protected From Avoidance As Fraudulent Transfers, Jeffrey Davis Dec 2012

Choosing Among Innocents: Should Donations To Charities Be Protected From Avoidance As Fraudulent Transfers, Jeffrey Davis

UF Law Faculty Publications

In recent years, the nation has experienced the most severe recession since the Great Depression of the 1930s. A recession is like a low tide. When the water recedes, the crabs, slugs, and urchins appear. Similarly, when the economy recedes, Ponzi schemes appear. People cut back on saving and investing, and many are forced to draw on savings and investments. Deprived of its life's blood, a positive cash flow, a Ponzi scheme dies. This explains why so many Ponzi schemes have failed recently, including the schemes of Bernard Madoff in New York, Tom Petters in Minneapolis, Robert Allen Stanford in …

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The Tipping Point Of Federalism, Amy L. Stein Nov 2012

The Tipping Point Of Federalism, Amy L. Stein

UF Law Faculty Publications

As the Supreme Court has noted, “it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.” And yet, the resources used to generate this electricity (e.g., coal, natural gas, or renewables) are determined largely by state and local authorities through their exclusive authority to determine whether to approve construction of a new electricity generation facility. As the nation finds itself faced with important decisions that directly implicate the …

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A Financial Economic Theory Of Punitive Damages, Robert J. Rhee Oct 2012

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

UF Law Faculty Publications

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather, it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

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Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky Oct 2012

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Barnett Lidsky

UF Law Faculty Publications

Like most of us, public colleges and universities increasingly are communicating via Facebook, Second Life, YouTube, Twitter and other social media. Unlike most of us, public colleges and universities are government actors, and their social media communications present complex administrative and First Amendment challenges. The authors of this article — one the dean of a major public university law school responsible for directing its social media strategies, the other a scholar of social media and the First Amendment — have combined their expertise to help public university officials address these challenges. To that end, this article first examines current and …

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Bad Faith At Middle Age: Comments On “The Principle Without A Name (Yet),” Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii Oct 2012

Bad Faith At Middle Age: Comments On “The Principle Without A Name (Yet),” Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

UF Law Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself. Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance …

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The Lessons From Libor For Detection And Deterrence Of Cartel Wrongdoing, Rosa M. Abrantes-Metz, D. Daniel Sokol Oct 2012

The Lessons From Libor For Detection And Deterrence Of Cartel Wrongdoing, Rosa M. Abrantes-Metz, D. Daniel Sokol

UF Law Faculty Publications

In late June 2012, Barclays entered into a $453 million settlement with UK and U.S. regulators due to its manipulation of Libor between 2005 and 2009. Among the agencies that investigated Barclays is the Department of Justice Antitrust Division (as well as other antitrust authorities and regulatory agencies from around the world). Participation in a price fixing conduct, by its very nature, requires the involvement of more than one firm.

We are cautious to draw overly broad conclusions until more facts come out in the public domain. What we note at this time, based on public information, is that the …

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Worldwide Access To Foreign Law: International & National Developments Toward Digital Authentication, Claire M. Germain Aug 2012

Worldwide Access To Foreign Law: International & National Developments Toward Digital Authentication, Claire M. Germain

Working Papers

This paper was originally presented at the World Library & Information Congress of the International Federation of Library Associations and Institutions (IFLA), Helsinki, Finland, August 2012, as part of a panel on Promoting Global Access to Law: Developing an Open Access Index for Official Authenticated Legal Information, Part II. Europe. http://conference.ifla.org/ifla78/programme-and-proceedings-day/2012-08-14. It focuses on worldwide access to the official word of the law, specifically to statutes, codes, regulations, court decisions, and international agreements in different foreign countries. The importance of improving global access to foreign law was highlighted at a 2012 joint European Commission/Hague Conference on Private International …

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Punishment Without Culpability, John F. Stinneford Jul 2012

Punishment Without Culpability, John F. Stinneford

UF Law Faculty Publications

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.

The …

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How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia Jul 2012

How Not To Criminalize Cyberbullying, Lyrissa Barnett Lidsky, Andrea Garcia

UF Law Faculty Publications

This essay provides a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which this essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, this essay contends that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, creating pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate …

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Cisg Translation Issues: Reducing Legal Babelism, Claire M. Germain Jun 2012

Cisg Translation Issues: Reducing Legal Babelism, Claire M. Germain

UF Law Faculty Publications

The CISG (Convention on Contracts for the International Sale of Goods) has remarkably facilitated commercial transactions across boundaries and different legal systems. This article, to be published as a Book Chapter, discusses some possible difficulties caused by using different languages, or words which might be interpreted differently, and some solutions and ways to deal with these difficulties. Three kinds of issues have appeared: the first has to do with drafting issues, and the peculiar problem of the six official languages of the Convention. The second set of issues deals with the interpretation of the Convention and the so-called homeward trend. …

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Awareness And The Legal Profession: An Introduction To The Mindful Lawyer Symposium, Leonard L. Riskin May 2012

Awareness And The Legal Profession: An Introduction To The Mindful Lawyer Symposium, Leonard L. Riskin

UF Law Faculty Publications

This article introduces the Mindfulness Symposium, which includes five articles that developed out of the Mindful Lawyer Conference held at U. California-Berkeley in 2010. The article explains mindfulness and its growing importance in the legal profession, situates it among other curricular innovations, summarizes the articles in the symposium, describes other mindfulness curriculum developments, and offers resources.

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The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster Apr 2012

The Transparency Fix: Advocating Legal Rights And Their Alternatives In The Pursuit Of A Visible State, Mark Fenster

UF Law Faculty Publications

The administrative norm of transparency, which promises a solution to the problem of government secrecy, requires political advocacy organized from outside the state. The traditional approach, typically the result of organized campaigns to make the state visible to the public, has been to enact freedom of information laws (FOI) that require government disclosure and grant enforceable rights to the public. The legal solution has not proven wholly satisfactory, however. In the past two decades, numerous advocacy movements have offered different fixes to the information asymmetry problem that the administrative state creates. These alternatives now augment and sometimes compete with legal …

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The Strategic Use Of Public And Private Litigation In Antitrust As Business Strategy, D. Daniel Sokol Mar 2012

The Strategic Use Of Public And Private Litigation In Antitrust As Business Strategy, D. Daniel Sokol

UF Law Faculty Publications

This Article claims that there may be a subset of cases in which private rights of action may work with public rights as an effective strategy for a firm to raise costs against rival dominant firms. A competitor firm may bring its own case (which is costly) and/or have government bring a case on its behalf (which is less costly). Alternatively, if the competitor firm has sufficient financial resources, it can pursue an approach that employs both strategies simultaneously. This situation of public and private misuse of antitrust may not happen often. As the Article will explore, it is not …

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Antitrust Energy, D. Daniel Sokol, Barak Orbach Mar 2012

Antitrust Energy, D. Daniel Sokol, Barak Orbach

UF Law Faculty Publications

Marking the centennial anniversary of Standard Oil Co. v. United States, we argue that much of the critique of antitrust enforcement and the skepticism about its social significance suffer from “Nirvana fallacy” — comparing existing and feasible policies to ideal normative policies, and concluding that the existing and feasible ones are inherently inefficient because of their imperfections. Antitrust law and policy have always been and will always be imperfect. However, they are alive and kicking. The antitrust discipline is vibrant, evolving, and global. This essay introduces a number of important innovations in scholarship related to Standard Oil and its modern …

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Privacy, Copyright, And Letters, Jeffrey L. Harrison Feb 2012

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

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Failed Exactions, Mark Fenster Jan 2012

Failed Exactions, Mark Fenster

UF Law Faculty Publications

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand …

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Theorizing History: Separate Spheres, The Public/Private Binary And A New Analytic For Family Law History, Danaya C. Wright Jan 2012

Theorizing History: Separate Spheres, The Public/Private Binary And A New Analytic For Family Law History, Danaya C. Wright

UF Law Faculty Publications

There is an extensive scholarship on separate spheres, the public/private binary, and family history that reveals a nuanced understanding of the interconnections and constructedness of these metaphors and rubrics traditionally used in family law history. In exploring the current understandings and limitations of these subjects as analytics for doing my own history of English family law, I turn to Michelle Zimbalist Rosaldo’s critique that we limit our subjects and reinforce power differentials when we use a lens of difference in our scholarship. I first explore the lessons learned about the enduring nature of separate spheres and the power imbalances of …

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The New Federal Circuit Mandamus, Paul R. Gugliuzza Jan 2012

The New Federal Circuit Mandamus, Paul R. Gugliuzza

UF Law Faculty Publications

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the …

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The Influence Of Law And Economics Scholarship On Contract Law: Impressions Twenty-Five Years Later, Jeffrey L. Harrison Jan 2012

The Influence Of Law And Economics Scholarship On Contract Law: Impressions Twenty-Five Years Later, Jeffrey L. Harrison

UF Law Faculty Publications

This is an update of a work done in conjunction with a contract law conference 25 years ago. My specific assignment was to assess the impact of law and economics scholarship on contract law. I responded by conducting an empirical study of judicial citations to selected law and economics works in order to ascertain the extent to which judges seemed to be relying on the teachings of law and economics. In effect, the effort was part of a general question that concerns all law professors: Does scholarship matter? I have repeated the study with respect to the scholarship sample selected …

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A Neo-Chicago Approach To Concerted Action, William H. Page Jan 2012

A Neo-Chicago Approach To Concerted Action, William H. Page

UF Law Faculty Publications

In this article, I offer an approach to concerted action that builds on traditional Chicago School analyses of the issue, but adds a focus on the role of communication. Chicago scholars uniformly identify cartels as the primary target of antitrust enforcement. They have also established much of the framework within which courts and economists analyze concerted action. George Stigler’s seminal theory of oligopoly, which sought to identify the determinants of effective collusion, has spawned an enormous literature in game theory that models the pricing behavior of oligopolists. Richard Posner’s early analysis of tacit collusion - rivals’ coordination of noncompetitive pricing …

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Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky Jan 2012

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

UF Law Faculty Publications

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

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The Constitutional Bond In Military Professionalism: A Reply To Professor Deborah N. Pearlstein, Diane H. Mazur Jan 2012

The Constitutional Bond In Military Professionalism: A Reply To Professor Deborah N. Pearlstein, Diane H. Mazur

UF Law Faculty Publications

The Soldier, the State, and the Separation of Powers is important and very persuasive. (In this Response, I will call it Separation of Powers to distinguish it clearly from The Soldier and the State,7 the classic work on civil–military relations referenced in the title.) Professor Pearlstein asks the right questions and reaches the right conclusions—no small task when law professors have typically deferred to expertise in other fields, if not avoided the subject entirely.8 What do we mean by civilian control of the military? Where is the line between a military that offers its professional expertise to civilian decision makers …

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Why We Should Never Pay Down The National Debt, Neil H. Buchanan Jan 2012

Why We Should Never Pay Down The National Debt, Neil H. Buchanan

UF Law Faculty Publications

Calls either to balance the federal budget on an annual basis, or to pay down all or part of the national debt, are based on little more than uninformed intuitions that there is something inherently bad about borrowing money. We should not only ignore calls to balance the budget or to pay down the national debt, but we should engage in a responsible plan to increase the national debt each year. Only by issuing debt to lubricate the financial system, and to support the economy’s healthy growth, can we guarantee a prosperous future for current and future citizens of the …

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Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect?, Stephen J. Powell, Trisha Low Jan 2012

Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect?, Stephen J. Powell, Trisha Low

UF Law Faculty Publications

As World Trade Organization ("WTO") Members relentlessly pursue new regional trade agreements to achieve even faster economic growth than the extraordinary numbers posted by global trade rules, the smaller number of parties and their greater cultural affinity have led negotiators to address the intersection of trade and human rights to an extent unparalleled in the culturally disparate and near-unmanageable, 150-plus member WTO itself. These new provisions have used trade's huge power to improve worker rights, secure environmental protections, and make initial inroads toward defending indigenous populations from trade's adverse effects. Employing the perspectives both of trade negotiators and students of …

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Privacy, Copyright, And Letters, Jeffrey L. Harrison Jan 2012

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

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Work, Family, And Discrimination At The Bottom Of The Ladder, Stephanie Bornstein Jan 2012

Work, Family, And Discrimination At The Bottom Of The Ladder, Stephanie Bornstein

UF Law Faculty Publications

With limited financial resources, few social supports, and high family caregiving demands, low-wage workers go off to work each day to jobs that offer low pay, few days off, and little flexibility or schedule stability. It should come as no surprise, then, that workers' family lives conflict with their jobs. What is surprising is the response at work when they do. This Article provides a survey of lawsuits brought by low-wage workers against their employers when they were unfairly penalized at work because of their caregiving responsibilities at home. The Article reflects a review of cases brought by low-wage hourly …

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Reforming Trade Remedies, Wentong Zheng Jan 2012

Reforming Trade Remedies, Wentong Zheng

UF Law Faculty Publications

This article aims to restart the debate on trade remedies by offering new perspectives on the fundamental defects of the current trade remedy regime and by proposing a bold yet feasible roadmap for reforms. This article focuses on antidumping, the linchpin of trade remedies. While antidumping is being justified as a safety valve for protectionist pressures, I argue in this article that antidumping is a faulty safety valve in that it provides arbitrary levels of protection for petitioners, results in undue uncertainties for respondents, and has too low a threshold for activation. I further demonstrate that antidumping exacerbates democracy deficit …

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Now You See It, Now You Don’T: The Comings And Goings Of Disregarded Entities, Martin J. Mcmahon Jr. Jan 2012

Now You See It, Now You Don’T: The Comings And Goings Of Disregarded Entities, Martin J. Mcmahon Jr.

UF Law Faculty Publications

While state law recognizes an LLC as a distinct type of entity, an LLC is not a distinct entity for federal tax purposes. An LLC that has two or more owners is treated as either a corporation or a partnership, while an LLC with a single owner will be disregarded for federal income tax purposes unless it elects to be treated as a corporation. In addition to single-member LLCs, the Code and Regulations recognize a second type of disregarded entity – the qualified subchapter S subsidiary (commonly called a QSub). The first part of this Article examines the tax consequences …

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Antitrust, Innovation, And Product Design In Platform Markets: Microsoft And Intel, William H. Page, Seldon J. Childers Jan 2012

Antitrust, Innovation, And Product Design In Platform Markets: Microsoft And Intel, William H. Page, Seldon J. Childers

UF Law Faculty Publications

The Antitrust Division’s Microsoft case and the Federal Trade Commission’s Intel case both rested on claims that antitrust intervention was necessary to preserve innovation in technological platforms at the heart of the personal computer. Yet, because those very platforms support markets that are among the most innovative in the American economy, injudicious intervention might well have jeopardized the very innovation that antitrust should promote. In this article, we review the role of platforms in technological innovation and consider how antitrust standards should apply to them. We then examine how Microsoft resolved antitrust issues affecting platform design at various stages of …

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