Law Commons^™

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

UF Law Faculty Publications

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

Whither Communism: A Comparative Perspective On Constitutionalism In A Postsocialist Cuba, Jon L. Mills, Daniel Ryan Koslosky

UF Law Faculty Publications

For over fifty years, Cuba has been a source of high-spirited political and policy debates. Its history and geostrategic position make it unique in American diplomatic and socioeconomic history. Interest in the island has not waned with the collapse of Communism in Eastern Europe and the former Soviet Union. On the contrary, Raul Castro’s assumption of Government has led many to begin asking how and under what circumstances political liberalization and economic transformation may occur in Cuba. This article examines the possible constitutional outcomes of a Cuba transition and introduces a framework for analyzing both Cuban economic reforms and US …

Recent Developments In Federal Income Taxation: The Year 2008, Martin J. Mcmahon Jr., Ira B. Shepard, Daniel L. Simmons

UF Law Faculty Publications

This article discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during 2008 - and sometimes a little farther back in time if the authors find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are discussed to the extent that …

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

UF Law Faculty Publications

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

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

UF Law Faculty Publications

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

What Do We Owe Future Generations?, Neil H. Buchanan

UF Law Faculty Publications

In the United States, it is common for legal scholars, economists, politicians and others to claim that we are selfishly harming "our children and grandchildren" by (among many other things) running large government budget deficits. This article first asks two broad questions: (1) Do we owe future generations anything at all as a philosophical matter? and (2) If we do owe something to future generations, how should we balance their interests against our own? The short answers are "Probably" and "We really are not sure." Finding only general answers to these general questions, I then look specifically at U.S. fiscal …

Employment As Transaction, Rachel Arnow-Richman

UF Law Faculty Publications

This piece offers a fresh perspective on the upper-level employment law class based on the theme of employment as transaction. Like much of law school, employment law is often taught from a public advocacy perspective in which the primary role of the lawyer is to vindicate workers' rights or responsively defend managerial action. As a doctrinal matter, however, courts are showing increased attention to the role of private ordering in defining workplace rights and assessing liability, even in regulatory areas. Courts routinely examine employers' efforts to redress unlawful behavior under antidiscrimination law and consistently sanction the use of arbitration agreements …

Happiness, Efficiency, And The Promise Of Decisional Equity: From Outcome To Process, Jeffrey L. Harrison

UF Law Faculty Publications

This article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. Part II places happiness research in the context of past efforts to assess efficiency standards. Part III outlines the schism between efficiency and happiness and examines whether they can be reconciled. Part IV discusses the problems of relying on direct measures of happiness. The concept of decisional equity is described and examined in Part V.

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

UF Law Faculty Publications

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

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

UF Law Faculty Publications

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

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

UF Law Faculty Publications

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

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

UF Law Faculty Publications

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

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

UF Law Faculty Publications

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

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

UF Law Faculty Publications

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

Protecting A Natural Resource Legacy While Promoting Reslience: Can It Be Done?, Alyson C. Flournoy

UF Law Faculty Publications

Our stock of natural resources, and the values and services they provide, are diminishing steadily over time. We have dozens of laws, enacted over a period of almost forty years that express the objective of stemming this tide. Yet, the inexorable, incremental loss continues. Scholars concerned with conservation of our natural capital have long wrestled with how best to improve the laws we have in place and to supplement the framework of existing law with newer approaches. One common theme in efforts to design progressive conservation law is how to better incorporate scientific insights into our legal regimes.

This effort …

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

UF Law Faculty Publications

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