Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

University of Florida Levin College of Law

Series

2020

Articles 1 - 30 of 53

Full-Text Articles in Law

Taxing Book Profits: New Proposals And 40 Years Of Critiques, Mindy Herzfeld Dec 2020

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.

Go to article

Bundled Discounts, Loyalty Discounts And Antitrust Policy, Roger D. Blair, Thomas Knight Jan 2020

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.

Go to article

Children's Equality: Strategizing A New Deal For Children, Nancy E. Dowd Jan 2020

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, …

Go to article

Artificial Intelligence And Climate Change, Amy L. Stein Jan 2020

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 …

Go to article

Contracting For Confidential Discovery, Seth Katsuya Endo Jan 2020

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 …

Go to article

Dissent, Disagreement And Doctrinal Disarray: Free Expression And The Roberts Court In 2020, Clay Calvert Jan 2020

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 …

Go to article

Deadly Delay: The Fda's Role In America's Covid-Testing Debacle, Barbara J. Evans, Ellen Wright Clayton Jan 2020

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 …

Go to article

Litigation Blues For Red-State Trusts: Judicial Construction Issues For Wills And Trusts, Lee-Ford Tritt Jan 2020

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, …

Go to article

The Soul Savers: A 21st Century Homage To Derrick Bell’S Space Traders Or Should Black People Leave America?, Katheryn Russell-Brown Jan 2020

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 …

Go to article

Rethinking Major League Baseball’S Antitrust Exemption, Roger D. Blair, Wenche Wang Jan 2020

Rethinking Major League Baseball’S Antitrust Exemption, Roger D. Blair, Wenche Wang

UF Law Faculty Publications

For nearly a century, Major League Baseball (MLB) has enjoyed antitrust immunity. No other sports league or organization is similarly exempt. Shielded by precedent from antitrust prosecution, MLB clubs are free to exploit both monopolistic and monopsonistic power. In this paper, we call for a repeal of MLB’s antitrust exemption. In doing so, we examine some recent antitrust challenges to MLB conduct, the current interest of the Department of Justice and the Federal Trade Commission in labor market issues, the welfare consequences of the exemption, and a policy recommendation for legislative action.

Go to article

Integrative Environmental Law: A Prescription For Law In The Time Of Climate Change, Alyson C. Flournoy Jan 2020

Integrative Environmental Law: A Prescription For Law In The Time Of Climate Change, Alyson C. Flournoy

UF Law Faculty Publications

As the magnitude of the threat posed by climate change has become increasingly apparent, scholars and practitioners have begun a dialogue about how to reform environmental law to meet the challenge. Concepts like adaptive management, sustainability, and resilience have emerged in succession, as policy makers and scholars search for new moorings for our ethical and legal framework. While useful, these concepts have failed to provide a vision, goal, or solid ethical grounding for environmental law in the era of climate change. This project takes a new approach by exploring what we can learn from the field of Integrative Medicine. The …

Go to article

Finding Balance, Forging A Legacy: Harassers’ Rights And Employer Best Practices In The Era Of Metoo, Rachel Arnow-Richman Jan 2020

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 …

Go to article

Testing The First Amendment Validity Of Laws Banning Sexual Orientation Change Efforts On Minors: What Level Of Scrutiny Applies After Becerra And Does A Proportionality Approach Provide A Solution?, Clay Calvert Jan 2020

Testing The First Amendment Validity Of Laws Banning Sexual Orientation Change Efforts On Minors: What Level Of Scrutiny Applies After Becerra And Does A Proportionality Approach Provide A Solution?, Clay Calvert

UF Law Faculty Publications

This Article examines the standard of scrutiny courts should apply when testing the validity of laws banning speech-based sexual orientation change efforts (SOCE) against First Amendment challenges. Justice Clarence Thomas’s 2018 opinion for a five-justice conservative majority of the United States Supreme Court in National Institute of Family and Life Advocates v. Becerra casts considerable doubt on whether a level of inquiry less stringent than strict scrutiny applies. The article analyzes how lower courts after Becerra that have reviewed anti-SOCE laws disagree on the issue. And yet, as the Article explains, the Supreme Court refuses to clarify the muddle. First, …

Go to article

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Andrew Hammond, Ariel Jurow Kleiman, Gabriel Scheffler Jan 2020

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Andrew Hammond, Ariel Jurow Kleiman, Gabriel Scheffler

UF Law Faculty Publications

The COVID-19 pandemic has delivered an unprecedented shock to the United States and the world. It is unclear precisely how long the twin crises, epidemiological and economic, will last, and it is difficult to gauge the extent and direction of the changes in American life these crises will cause. Nonetheless, it is beyond dispute that the COVID-19 pandemic is putting significant strain on both the ability of Americans to meet basic needs and our government’s capacity to assist them. Federal, state, and local governments have responded in various ways to deploy existing safety net programs like Medicaid, SNAP (food stamps), …

Go to article

Litigating Welfare Rights: Medicaid, Snap, And The Legacy Of The New Property, Andrew Hammond Jan 2020

Litigating Welfare Rights: Medicaid, Snap, And The Legacy Of The New Property, Andrew Hammond

UF Law Faculty Publications

In 2017, the Republican-controlled Congress was poised to make deep cuts to the nation’s two-largest anti-poverty programs: Medicaid and the Supplemental Nutrition Assistance Program (SNAP), commonly known as “food stamps.” Yet, despite having a unified, GOP-led federal government for the first time in over a decade, those efforts failed. Meanwhile, the Trump Administration and its allies in state government continue to pursue different strategies to roll back entitlements to medical and food assistance. As public interest lawyers challenge these agency actions in federal court , roughly five million Americans’ health insurance and food assistance hang in the balance. This Article …

Go to article

The Dog Walker, The Birdwatcher And Racial Voice: The Manifest Need To Punish Racial Hoaxes, Katheryn Russell-Brown Jan 2020

The Dog Walker, The Birdwatcher And Racial Voice: The Manifest Need To Punish Racial Hoaxes, Katheryn Russell-Brown

UF Law Faculty Publications

This Essay shines a spotlight on racial hoaxes, as both historical and contemporary phenomena. The discussion proceeds with three objectives in mind. First, to provide a context for racial hoaxes. This history shows that hoaxes are not benign offenses. Second, to identify the legal and social harms of racial hoaxes. Third, to discuss why sanctions for hoaxes should be reimagined to impose harms that deter future hoaxes. The fact that racial hoaxes continue to be deployed demonstrates that they carry legal and cultural weight. Racial hoaxes are used to activate and privilege some voices over others. The resulting inequity courses …

Go to article

Sustainable Tax Policy Through The Lens Of Intergenerational Justice, Neil H. Buchanan Jan 2020

Sustainable Tax Policy Through The Lens Of Intergenerational Justice, Neil H. Buchanan

UF Law Faculty Publications

As the papers in this issue demonstrate, the tax system, both domestically and internationally, can be used to help undo generations of damage to all aspects of society, allowing our children and grandchildren to inherit a society that is more just and prosperous than what we are living with today. This is what sustainable policy design requires.

Go to article

Children's Equality: The Centrality Of Race, Gender, And Class, Nancy E. Dowd Jan 2020

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 …

Go to article

Analyzing Vertical Mergers: Accounting For The Unilateral Effects Tradeoff And Thinking Holistically About Efficiencies, Roger D. Blair, Christine Wilson, D. Daniel Sokol, Keith Klovers, Jeremy Sandford Jan 2020

Analyzing Vertical Mergers: Accounting For The Unilateral Effects Tradeoff And Thinking Holistically About Efficiencies, Roger D. Blair, Christine Wilson, D. Daniel Sokol, Keith Klovers, Jeremy Sandford

UF Law Faculty Publications

With the adoption of the 2020 Vertical Merger Guidelines, the U.S. antitrust agencies have updated their guidance on vertical mergers for the Twenty-First Century. Although economists have long recognized the procompetitive benefits most vertical mergers generate, the law has not always followed suit, and has sometimes condemned vertical mergers for making the merged firm more efficient. In this article, we attempt to catalogue the extensive list of efficiencies that vertical mergers can generate, trace the often halting efforts to incorporate these insights into the law, and propose a framework that courts and agencies can use to assess the likely competitive …

Go to article

Rescinding Admission Offers In Higher Education: The Clash Between Free Speech And Institutional Academic Freedom When Prospective Students' Racist Posts Are Exposed, Clay Calvert Jan 2020

Rescinding Admission Offers In Higher Education: The Clash Between Free Speech And Institutional Academic Freedom When Prospective Students' Racist Posts Are Exposed, Clay Calvert

UF Law Faculty Publications

This Article examines the tension between a prospective college student's First Amendment freedom of speech and a public university's unenumerated, inchoate right of institutional academic freedom. The friction between these interests was cast in high relief in 2020 when several schools confronted dual issues: (1) whether to rescind offers of admission to individuals who later were discovered to have engaged in offensive speech, and (2) whether revoking admission offers because of odious, hateful messages would violate the constitutional right of free expression. The Article argues that the right of institutional academic freedom-albeit maddeningly amorphous-encompasses a public institution's ability to choose …

Go to article

White Privilege: What It Is, What It Is Not, And How It Shapes American Discussions Of Policing And Historical Iconography, Neil H. Buchanan Jan 2020

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 …

Go to article

Unaccompanied Minors, Statutory Interpretation, And Due Process, Shani M. King, Nicole Silvestri Hall Jan 2020

Unaccompanied Minors, Statutory Interpretation, And Due Process, Shani M. King, Nicole Silvestri Hall

UF Law Faculty Publications

This Article proposes a novel statutory argument in favor of finding a categorical right to appointed counsel for unaccompanied minors (UMs) using the Immigration and Nationality Act (INA)’s fair hearing provision as the basis for this right. We provide the historical framework behind the enshrinement of these two rights and then argue that Congress never intended to preclude appointed counsel. We further propose that the Trafficking Victims Protection Reauthorization Act (TVPRA) grants UMs a positive liberty interest,14 and we use this statutory interest as the basis of an original means of surmounting the Lassiter presumption that only a loss of …

Go to article

The Ncaa’S Transfer Rules: An Antitrust Analysis, Roger D. Blair, Wenche Wang Jan 2020

The Ncaa’S Transfer Rules: An Antitrust Analysis, Roger D. Blair, Wenche Wang

UF Law Faculty Publications

In Deppe v. National Collegiate Athletic Association, the Seventh Circuit accepted the NCAA’s argument that its transfer rules are presumptively procompetitive. It also approved the NCAA’s no-poaching agreement. This Article analyzes these NCAA-imposed restraints and finds them inconsistent with current antitrust policy.

Go to article

Rethinking The Efficiency Of The Common Law, D. Daniel Sokol Jan 2020

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 …

Go to article

The Rise And (Potential) Fall Of U.S. Cartel Enforcement, Vivek Ghosal, D. Daniel Sokol Jan 2020

The Rise And (Potential) Fall Of U.S. Cartel Enforcement, Vivek Ghosal, D. Daniel Sokol

UF Law Faculty Publications

Government enforcement against collusion, now viewed by the Supreme Court as the “supreme evil” in antitrust, has gone through various phases of enforcement in the United States. There have been periods in which cartels have been able to collude more or less effectively given various institutional tools at the disposal of the government. By analyzing enforcement and prosecutions data over a long time horizon, 1969–2016, this Article examines the attributes of cartel enforcement over time and the changing use of tools to assist with detection and punishment. We provide a comprehensive description of critical cartel enforcement events and institutional developments …

Go to article

Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol Jan 2020

Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol

UF Law Faculty Publications

Tim Wu’s most recent book, The Curse of Bigness: Antitrust in the Gilded Age, is an attempt to reframe contemporary antitrust debates by returning antitrust to its more populist roots. Given the global implications of his ideas and policy proposals (including breakup of tech platforms) for many of the large corporations that he takes on, The Curse of Bigness offers profound insights for how society and business should be organized. The first part of this Review summarizes Wu’s major claims. It then highlights some of his critiques as to “bigness,” the multiple goals of antitrust, and the missed opportunities as …

Go to article

Children’S Equality Rights: Every Child’S Right To Develop To Their Full Capacity, Nancy E. Dowd Jan 2020

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 …

Go to article

Regulate Physician Restrictive Covenants To Improve Healthcare, Judy Ann Clausen Jan 2020

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 …

Go to article

Direct Evidence Of A Sherman Act Agreement, William H. Page Jan 2020

Direct Evidence Of A Sherman Act Agreement, William H. Page

UF Law Faculty Publications

In cases that allege price fixing or other per se violations of Section 1 of the Sherman Act, courts usually begin their opinions by saying there is no direct evidence of agreement—evidence like a “recorded phone call” that is “explicit and requires no inferences to establish” that the necessary direct communications occurred. Only at that point do the courts turn to the sufficiency of the inferences of agreement from circumstantial evidence. Courts highlight the absence of direct evidence of agreement in this way because of its special role on motions to dismiss or for summary judgment, when courts do not …

Go to article

The Politics Of Pregnancy Accommodation, Stephanie Bornstein Jan 2020

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 …

Go to article

Next Last