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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.
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, …
Negative Activism, Barbara A. Bliss, Peter Molk, Frank Partnoy
Negative Activism, Barbara A. Bliss, Peter Molk, Frank Partnoy
UF Law Faculty Publications
Shareholder activism has become one of the most important and widely studied topics in law and finance. To date, popular and academic accounts have focused on what we call “positive activism,” where activists seek to profit from positive changes in the share prices of targeted firms. In this Article, we undertake the first comprehensive study of positive activism’s mirror image, which we term “negative activism.” Whereas positive activists focus on increasing share prices, negative activists take short positions to profit from decreasing share prices. We develop a descriptive typology of three categories of negative activism and use a private database …
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.
Rethinking Major League Baseball’S Antitrust Exemption, Roger D. Blair, Wenche Wang
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.
Integrative Environmental Law: A Prescription For Law In The Time Of Climate Change, Alyson C. Flournoy
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 …
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 …
Direct Evidence Of A Sherman Act Agreement, William H. Page
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 …
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 …
Expanding The Framework Of Family Issues: Bringing Children’S Rights And Children’S Perspectives Into Immigration, Nancy E. Dowd
Expanding The Framework Of Family Issues: Bringing Children’S Rights And Children’S Perspectives Into Immigration, Nancy E. Dowd
UF Law Faculty Publications
Family law, and the systems with which families interact, and child law or children’s rights, are typically viewed as separate legal subjects or categories. This essay challenges that separation and its consequences for family issues, arguing that family law and the systems with which families interact would benefit from a stronger infusion of children’s perspectives, interests and rights. One benefit would be a stronger structural or systemic focus to family law, reflecting the responsibilities of the State for children in the form of positive socio-economic supports for systems of health, education, housing and employment that are critical to children’s development. …
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 …
The Political Economy Of Corporate Law And Governance: American And Korean Rules Under Different Endogenous Conditions And Forms Of Capitalism, Robert J. Rhee
The Political Economy Of Corporate Law And Governance: American And Korean Rules Under Different Endogenous Conditions And Forms Of Capitalism, Robert J. Rhee
UF Law Faculty Publications
Advanced economies operate under different forms of capitalism and social order. Corporate law is fixed only insofar as a country’s political economy and social organization are static. This article explains why an advanced economy may choose inefficient rules. Korean rules are the product of past industrial development policies and current social-political-economic conditions; endogenous conditions align corporate law with nationalistic sentiments and the public interest. The cost of this policy is diminution of firm value. The benefit is the erection of a plausible distinction between rule- and fact-based control of key corporate groups. This system maintains de facto national control of …
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 …
Antitrust's "Curse Of Bigness" Problem, D. Daniel Sokol
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 …
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 …
The Systems Approach To Teaching Business Associations, Lynn M. Lopucki, Andrew Verstein
The Systems Approach To Teaching Business Associations, Lynn M. Lopucki, Andrew Verstein
UF Law Faculty Publications
The systems approach applies the methods of systems analysis to law. The principal method is to describe the system, situate a problem within the system, and take system mechanics into account in solving it. The system might be the “legal system”—essentially litigation. But more often, it is a “law-related system”—one not composed of law, but one in which law plays a role. That system might be crime, the Internet, the corporation, or any other activity substantially affected by law. The analyst situates the application of law in the context of the physical system as it actually operates. In business associations, …
"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 …
Unaccompanied Minors, Statutory Interpretation, And Due Process, Shani M. King, Nicole Silvestri Hall
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 …
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 …
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, …
The Ncaa’S Transfer Rules: An Antitrust Analysis, Roger D. Blair, Wenche Wang
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.
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 …
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 …
The Rise And (Potential) Fall Of U.S. Cartel Enforcement, Vivek Ghosal, D. Daniel Sokol
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 …
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 …
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 …
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 …
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
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 …
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 …