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University of Florida Levin College of Law

2003

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Articles 1 - 30 of 58

Full-Text Articles in Law

Prosecuting Martha: Federal Prosecutorial Power And The Need For A Law Of Counts, Michael L. Seigel, Christopher Slobogin Dec 2003

Prosecuting Martha: Federal Prosecutorial Power And The Need For A Law Of Counts, Michael L. Seigel, Christopher Slobogin

UF Law Faculty Publications

Martha Stewart's case illustrates a wide variety of prosecutorial decision-making. We have defended the U.S. Attorney's decision to investigate and prosecute Stewart, but called into question the further decision to charge her with five counts. As a way of curtailing the redundant charging phenomenon, which is widespread, we have suggested that the courts develop a law of counts to cabin prosecutorial charging discretion. Thus, our proposal to create a law of counts would not require prosecutors to act against their short- or long-term interests. Rather, it would be implemented by judges using the interpretive method, without going so far as …


Diversity Matters: Race, Gender And Ethnicity In Legal Education., Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast Dec 2003

Diversity Matters: Race, Gender And Ethnicity In Legal Education., Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast

UF Law Faculty Publications

This Article presents more evidence of the inequality that persists in legal education for students. Based on a survey of University of Florida law students conducted in 2001, this study reaffirms the existence of differential experience and an inegalitarian culture in legal education. However, it also demonstrates the importance of diversity and the recognition by a significant majority of students of the value of race and gender pluralism. These competing findings provide a clear guide to the future direction of legal education.


Privacy Rights Versus Foia Disclosure Policy: The "Uses And Effects" Double Standard In Access To Personally-Identifiable Information In Government Records, Michael Hoefges, Martin E. Halstuk, Bill F. Chamberlin Dec 2003

Privacy Rights Versus Foia Disclosure Policy: The "Uses And Effects" Double Standard In Access To Personally-Identifiable Information In Government Records, Michael Hoefges, Martin E. Halstuk, Bill F. Chamberlin

UF Law Faculty Publications

The U.S. government maintains a vast amount of personally-identifiable information on millions of American citizens. Much of this information is contained in electronic databases maintained by federal agencies. Various Freedom of Information Act (FOIA) requesters, such as journalists, marketers, and union organizers seek this information for different purposes including investigative reporting and targeted solicitations. These kinds of uses are known as "derivative uses" because this government-compiled information is requested for purposes other than the official purposes for which the information was originally gathered. These and other derivative uses of personally-identifiable information often implicate privacy concerns. Conversely, restrictions on public access …


Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin Dec 2003

Decision-Making In Mediation: The New Old Grid And The New New Grid System, Leonard L. Riskin

UF Law Faculty Publications

This Article reviews the author's previous mediator-orientation models and proposes a new system for understanding the range of mediator orientations based on substantive, procedural, and meta-procedural decision-making grids.


Building An Environmental Ethic From The Ground Up, Alyson C. Flournoy Nov 2003

Building An Environmental Ethic From The Ground Up, Alyson C. Flournoy

UF Law Faculty Publications

Over the last twenty years there has been a remarkable theoretical flourishing in the field of environmental philosophy, with the development of biocentric ethics, animal rights theories, deep ecology, ecofeminism, modified utilitarianism, moral pluralism and theories drawing on numerous religious and cultural traditions. These theories explore the intellectual and moral causes for the environmentally destructive practices of the dominant western industrial and economic culture, and propose alternatives that might avoid these consequences. This symposium raises a worthy question: to what extent have these theories had practical impact on environmental law and policy. I come to this question as a lawyer …


Exculpatory Liabilities And Partnership Nonrecourse Allocations, Karen C. Burke Oct 2003

Exculpatory Liabilities And Partnership Nonrecourse Allocations, Karen C. Burke

UF Law Faculty Publications

The rise of limited liability companies (LLCs) classified as partnerships for federal income tax purposes challenges traditional assumptions concerning the treatment of recourse and nonrecourse liabilities under Subchapter K. The complex rules of sections 704(b) and 752 give little attention to liabilities that are recourse to the entity under section 1001 but for which no member bears the economic risk of loss under section 752. In comparison to traditional general or limited partnerships, however, LLCs are much more likely to incur such "exculpatory" liabilities because of the limited liability shield under state law. Although exculpatory liabilities are functionally quite similar …


From Genes, Marriage And Money To Nurture: Redefining Fatherhood, Nancy E. Dowd Oct 2003

From Genes, Marriage And Money To Nurture: Redefining Fatherhood, Nancy E. Dowd

UF Law Faculty Publications

Genes should not define fatherhood. This is wrong for men, and wrong for children. Genes define identity, but that link should be separated from the obligations and rights of parenthood. Specifically, I argue that fatherhood should be defined by doing (action) instead of being (status), with the critical component being acts of nurturing. In this essay I define in more detail this concept of fatherhood and its characteristics; discuss the consequences related to genetic ties; and consider the policy implications of defining fatherhood around nurture when genetic ties can be established for all children. It is critical throughout to remain …


The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster Oct 2003

The Symbols Of Governance: Thurman Arnold And Post-Realist Legal Theory, Mark Fenster

UF Law Faculty Publications

This article is an effort to provide both the intellectual context of Thurman Arnold's work and, through his work, a better sense of where and how the study of law turned after realism. The article is in five parts. Part I describes Arnold's relationship with legal realism, looking at the earliest part of his academic career when, as a mainstream realist, he performed empirical studies of local and state court systems. Part II is Arnold's proposed field of "Political Dynamics," an interdisciplinary approach to the symbols of law, politics, and economics. Part III considers Arnold's authorial voice in Symbols and …


Thurman Arnold's International Antitrust Legacy, William H. Page Jul 2003

Thurman Arnold's International Antitrust Legacy, William H. Page

UF Law Faculty Publications

In the decades before the World War II, a new economic philosophy favoring cooperation among competitors challenged the competitive model embodied in the antitrust laws. In the United States, the cooperative model had some successes in, for example, the Webb Pomerene Act of 1918, the associational activities of the 1920s, and the NRA codes of the 1930s. And, of course, antitrust law itself, after some false starts, came to recognize that some forms of cooperation are necessary for efficient production. Outside the United States, however, especially in the economic turbulence following World War I, policymakers adopted such an extreme form …


Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen Jul 2003

Let's Put Ourselves Out Of Business: On Respect, Responsibility, And Dialogue In Dispute Resolution, Jonathan R. Cohen

UF Law Faculty Publications

This Essay works in two steps. I want to daydream with you about the future, or what I hope will someday be the future, of our dispute resolution movement. I want to then use these imaginings to reflect upon where we are today. I want to suggest something that may at first seem odd: Our ultimate goal should be to put ourselves, or virtually put ourselves, out of business. Eventually, I hope the time will come when we live in a society where the expert services of dispute resolution professionals, including not only lawyers and judges but also mediators and …


Shared Knowledge, Shared Jurisprudence: Learning To Speak Environmental Law Creole (Criollo), Thomas T. Ankersen Jul 2003

Shared Knowledge, Shared Jurisprudence: Learning To Speak Environmental Law Creole (Criollo), Thomas T. Ankersen

UF Law Faculty Publications

The character of the legal and judicial systems in Latin America and the Caribbean is undergoing fundamental change. Traditionally weak judiciaries are emboldened, precedent as a jurisprudential decision-making tool has become increasingly important, the apparatus of administrative law has become more sophisticated and complex, and increasingly sophisticated reporting systems and the "globalization" of shared jurisprudence through contemporary communication media have all contributed to the development of law in the region. These broader systemic developments, though uneven and incomplete, have occurred in tandem with the emergence of environmental law as a unique and discrete body of law.

This Article traces several …


Factless Jurisprudence, Darren Lenard Hutchinson Jul 2003

Factless Jurisprudence, Darren Lenard Hutchinson

UF Law Faculty Publications

Professor Terry Smith has written a very important work on the inadequacy of juridical approaches to antidiscrimination law in the context of Title VII litigation. Smith argues that the anti-retaliation provisions of Title VII can serve more broadly as a mechanism for protecting workers of color from prohibited racial discrimination. Smith contends that contemporary equality jurisprudence, however, impedes the protective scope of the anti-retaliation provision because courts fail to appreciate the broader context of racial antagonism in which persons of color live. Particularly, courts often misinterpret lawful racial protest in the workplace as disruptive and appropriately regulated to the detriment …


Restricting The Flow Of Funds From U.S. Charities To International Terrorist Organizations - A Proposal, Mindy Herzfeld Jul 2003

Restricting The Flow Of Funds From U.S. Charities To International Terrorist Organizations - A Proposal, Mindy Herzfeld

UF Law Faculty Publications

This paper argues that the Internal Revenue Service should take a more active stance in denying tax exemption to organizations that finance terrorist activities abroad. The paper explores the well-established principle that organizations granted U.S. tax-exemption must act consistently with national public policy, and the application of that principle to charitable organizations that send monies overseas. To foster that policy, the Service should apply special guidelines to charitable organizations that channel contributions abroad, similar to the special guidelines in effect for tax-exempt private schools. In addition, legislative changes should be made to advance such a goal in order to provide …


State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page Jul 2003

State Action And The Meaning Of Agreement Under Sherman Act: An Approach To Hybrid Restraints, John E. Lopatka, William H. Page

UF Law Faculty Publications

Antitrust observers are familiar with the two-part Midcal test for the immunity of state regulation from federal antitrust laws: the state must clearly articulate its policy to displace competition and must "actively supervise" any private conduct pursuant to the policy. But state action need not meet these requirements if it is "unilateral" and therefore does not conflict with Section 1. Only if a state-authorized restraint is "hybrid," combining state and private action in a way that resembles aprohibited agreement, need the restraint satisfy Midcal.

In this article, John Lopatka and Bill Page examine the history andcurrent importance of the …


Familias Sin Fronteras: Mujeres Unidas Por Su Historia, Berta E. Hernández-Truyol Apr 2003

Familias Sin Fronteras: Mujeres Unidas Por Su Historia, Berta E. Hernández-Truyol

UF Law Faculty Publications

Does there exist a Cuban society that is culturally cohesive? Is Cubanidad dependent on territorial borders and political ideology? Can there be a singular narrative on Cubanidad that transcends geography and politics? This article asks those questions and posits that, while political and economic differences might result in very different lifestyles and ideologies, social and cultural tropes might provide some similarities and cultural cohesion. This thesis is tested through the study of available, albeit sparse, information on the role of Cubanas in society. First the role of women in Cuban society throughout history is examined. Next, changes in the laws …


A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale Apr 2003

A Different Sort Of Justice: The Informal Courts Of Public Opinion In Antebellum South Carolina, Elizabeth Dale

UF Law Faculty Publications

Studies of nineteenth century legal history assume that the antebellum South, and antebellum South Carolina in particular, had a legal culture shaped by honor culture and marked by the hierarchical assumptions and extralegal violence that honor culture engendered. In this article, I offer a modification of that well-established account. While I do not question the influence of honor on South Carolina's antebellum legal culture, I suggest that the state had a second, shame-based system of popular justice, in which women played a prominent role. As was the case with honor culture, this second form of extralegal justice, which I have …


Introduction: Latcritical Encounters With Culture, In North-South Frameworks, Pedro Malavet Jan 2003

Introduction: Latcritical Encounters With Culture, In North-South Frameworks, Pedro Malavet

Pedro A. Malavet

A critical introduction of a group of articles in the LatCrit VI Symposium issue, discussing the authors' diverse approaches to Latin American legal cultures and contextualizing the publications in the growing body of LatCrit scholarship.


Why Globalization? A Look At Global Capitalism And Its Effects, Larry J. Obhof Jan 2003

Why Globalization? A Look At Global Capitalism And Its Effects, Larry J. Obhof

University of Florida Journal of Law & Public Policy

No abstract provided.


The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright Jan 2003

The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright

University of Florida Journal of Law & Public Policy

No abstract provided.


Bradley, Breyer, Bush And Beyond: The Legal Realism Of Legal History, Benjamin C. Block Jan 2003

Bradley, Breyer, Bush And Beyond: The Legal Realism Of Legal History, Benjamin C. Block

University of Florida Journal of Law & Public Policy

No abstract provided.


Sovereignty In The Balance: Taxation By Tribal Governments, Ann-Marie Tabor Jan 2003

Sovereignty In The Balance: Taxation By Tribal Governments, Ann-Marie Tabor

University of Florida Journal of Law & Public Policy

No abstract provided.


The Impact Of Medicaid Estate Recovery On Nontraditional Families, Diane Lourdes Dick Jan 2003

The Impact Of Medicaid Estate Recovery On Nontraditional Families, Diane Lourdes Dick

University of Florida Journal of Law & Public Policy

No abstract provided.


Judicial Impartiality And The Regulation Of Judicial Election Campaigns, Ofer Raban Jan 2003

Judicial Impartiality And The Regulation Of Judicial Election Campaigns, Ofer Raban

University of Florida Journal of Law & Public Policy

No abstract provided.


Is "Don't Ask, Don't Tell" Unconstitutional After Lawrence? What It Will Take To Overturn The Policy, Diane H. Mazur Jan 2003

Is "Don't Ask, Don't Tell" Unconstitutional After Lawrence? What It Will Take To Overturn The Policy, Diane H. Mazur

University of Florida Journal of Law & Public Policy

No abstract provided.


Adoptive Families Headed By Gay Or Lesbian Parents: A Threat . . . Or Hidden Resource?, Scott D. Ryan, Scottye Cash Jan 2003

Adoptive Families Headed By Gay Or Lesbian Parents: A Threat . . . Or Hidden Resource?, Scott D. Ryan, Scottye Cash

University of Florida Journal of Law & Public Policy

No abstract provided.


Homosexuality And The European Court Of Human Rights: Recent Judgments Against The United Kingdom And Their Impact On Other Signatories To The European Convention Of Human Rights, Sameera Dalvi Jan 2003

Homosexuality And The European Court Of Human Rights: Recent Judgments Against The United Kingdom And Their Impact On Other Signatories To The European Convention Of Human Rights, Sameera Dalvi

University of Florida Journal of Law & Public Policy

No abstract provided.


Did Privacy Cause Identity Theft?, Lynn M. Lopucki Jan 2003

Did Privacy Cause Identity Theft?, Lynn M. Lopucki

UF Law Faculty Publications

This essay argues that the decline of public identities over the past three decades, combined with increasing secrecy in the process of identification, is the root cause of the burgeoning problem of identity theft. Identity theft is easy because impersonation increasingly takes place in private transactions that are invisible to the victim. The essay compares two proposed solutions: Professor Daniel Soloves' architectural approach and the author's Public Identity System. Both would make the identification process transparent to the person identified, put imposters at risk by requiring personal appearances, and ban the use of social security numbers as passwords. But the …


A Dedication To Chesterfield H. Smith, Scott D. Makar Jan 2003

A Dedication To Chesterfield H. Smith, Scott D. Makar

University of Florida Journal of Law & Public Policy

No abstract provided.


Dedication, Chesterfield H. Smith Jan 2003

Dedication, Chesterfield H. Smith

University of Florida Journal of Law & Public Policy

No abstract provided.


Diversity Matters: Race, Gender, And Ethnicity In Legal Education, Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast Jan 2003

Diversity Matters: Race, Gender, And Ethnicity In Legal Education, Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast

University of Florida Journal of Law & Public Policy

No abstract provided.