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Articles 31 - 53 of 53
Full-Text Articles in Law
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 …
Integrated Learning, Integrated Faculty, Rachel Arnow-Richman
Integrated Learning, Integrated Faculty, Rachel Arnow-Richman
UF Law Faculty Publications
A fundamental obstacle to the success of legal education’s practice readiness movement is the “bifurcated faculty.” Most law schools continue to operate a two tiered system in which a group of elite credentialed “doctrinal” faculty enjoy the generous compensation, security, and privileges associated with tenure, while an underclass of contract faculty teach work intensive “skills” courses for lower pay and lesser status. This Essay analyzes the bifurcated faculty as a personnel practice, leveraging insights from management theory and employment discrimination scholarship to evaluate law schools as employers. It considers, first, the rise of new economy management practices that eschew static …
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 …
Minding The Gaps In Regulation Of Do-It-Yourself Biotechnology, Barbara J. Evans
Minding The Gaps In Regulation Of Do-It-Yourself Biotechnology, Barbara J. Evans
UF Law Faculty Publications
This Symposium confronts the reality that genetic technologies – not just genetic tests, but tools for altering plant, animal, and human genomes – are rapidly becoming and indeed already are consumer technologies. People can experiment with and apply these technologies in disintermediated formats, potentially without the involvement of national research funding agencies, professional scientists, physicians, genetic counselors, regulators, and traditional medical product manufacturers. The framework of 20th -century medical product and practice regulations assigned each of these parties a role in promoting ethical, safe, and effective biomedical research and health care. Do-it-yourself biotechnology (DIYbio), which includes direct-to-consumer (DTC) and do-it-yourself …
Escaping Doctrinal Lockboxes In First Amendment Jurisprudence: Workarounds For Strict Scrutiny For Low-Value Speech In The Face Of Stevens And Reed, Clay Calvert
UF Law Faculty Publications
The United States Supreme Court’s 2010 opinion in the crush-video case of United States v. Stevens made it extremely difficult to declare new varieties of low-value speech unprotected by the First Amendment. Five years later, the Court’s sign-ordinance ruling in Reed v. Town of Gilbert made it exceedingly tough for facially content-based regulations imposed on presumptively protected speech to be analyzed by any standard of judicial review less rigorous than the demanding strict scrutiny test. This Article examines how some courts today, despite being hemmed in by the strictures of both Stevens and Reed, are creatively unearthing novel ways to …
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 …
Judging And Baseball, Merritt E. Mcalister
Judging And Baseball, Merritt E. Mcalister
UF Law Faculty Publications
No abstract provided.
"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 …
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 …
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. …
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 …
Cooperative Federalism And Sijs, Shani M. King, Nicole Silvestri Hall
Cooperative Federalism And Sijs, Shani M. King, Nicole Silvestri Hall
UF Law Faculty Publications
Recognizing the plight of young immigrants who have suffered abuse, neglect, or abandonment, and cannot be reunited with a parent, Congress has accorded those who qualify Special Immigrant Juvenile Status (SIJS). SIJS has created an expedited path for them to permanent residency and, ultimately, citizenship. The statutory scheme Congress crafted is unusual in that it requires each applicant to obtain a state court order finding that they meet the requirements for SIJS before the United States Citizenship and Immigration Service decides whether to confer that status on them. The implementation of this scheme has been fraught with difficulty, representing for …
Is Solitary Confinement A Punishment?, John F. Stinneford
Is Solitary Confinement A Punishment?, John F. Stinneford
UF Law Faculty Publications
The United States Constitution imposes a variety of constraints on the imposition of punishment, including the requirements that the punishment be authorized by a preexisting penal statute and ordered by a lawful judicial sentence. Today, prison administrators impose solitary confinement on thousands of prisoners despite the fact that neither of these requirements has been met. Is this imposition a “punishment without law,” or is it a mere exercise of administrative discretion? In an 1890 case called In re Medley, the Supreme Court held that solitary confinement is a separate punishment subject to constitutional restraints, but it has ignored this holding …
What Happened To Grandma’S House: The Real Property Implications Of Dying Intestate, Danaya C. Wright
What Happened To Grandma’S House: The Real Property Implications Of Dying Intestate, Danaya C. Wright
UF Law Faculty Publications
Studies have shown that intergenerational wealth transmission significantly affects wealth concentration and the growing wealth gap. Of the two million households that received an inheritance or a substantial inter vivos gift each year, roughly half are small, under $50,000, while transfers of $1 million or more account for only 2% of the transfers. Yet, those 2% of inheritances over $1 million comprise 40% of total wealth transferred. As scholars continue to examine the role of inheritance in the alarming wealth gap, few are focusing on how the laws of intestacy might exacerbate the gap by leading to greater wealth loss …
Energy Emergencies, Amy L. Stein
Energy Emergencies, Amy L. Stein
UF Law Faculty Publications
Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability. This Article challenges …
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 …
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe
UF Law Faculty Publications
This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …
Transboundary Waters, Annie Brett
Transboundary Waters, Annie Brett
UF Law Faculty Publications
In 2018, toxic algae spread from Lake Okeechobee through the State of Florida, leading to a state of emergency and costing the state over $17 million. Similar toxic algal blooms have become an annual occurrence throughout the country and highlighted the pervasive issues with the US. water supply. Inadequate and incomplete monitoring data means that state and federal managers, as well as the public, know shockingly little about water quality in most of the waters in the United States despite the fact that the Clean Water Act requires extensive water quality monitoring and assessment. Academics have widely discussed failings of …
The Unwritten Rules Of Liberal Democracy, Charles W. Collier
The Unwritten Rules Of Liberal Democracy, Charles W. Collier
UF Law Faculty Publications
This Article is set amidst the distinctly unsettled and unsettling state of governmental practices, legislative policy, and presidential politics of contemporary America. Immediacy, too, introduces its own uncertainty—as compared to the comfortable vantage point of the distant future. But, as I shall argue, there is no realistic alternative to beginning in medias res. To address these issues as they inherently demand, the usual precedents and protocols and precautions must be set aside—if they are not already “gone with the wind.”6 Since the 2016 Presidential Election, and even before, threats to liberal democracy have emerged, in plausible form, as never before …
The Digital Challenge To International Trade Law, Wentong Zheng
The Digital Challenge To International Trade Law, Wentong Zheng
UF Law Faculty Publications
The rise of the Internet and so-called digital trade has significantly transformed international trade. International trade law, however, has lagged behind in regulating the phenomenon. Decades-long negotiations at the World Trade Organization (WTO) over digital trade have largely stalled, while efforts to deal with the issue at the bilateral and regional levels have resulted in inconsistent and fragmented rules. This article discusses the challenges posed by digital trade to international trade law and the best ways to meet those challenges. It contributes to the discourse on digital trade by advocating for a back-to-basics approach. It argues that instead of undertaking …
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.
The Spurious Allure Of Pass-Through Parity, Karen C. Burke
The Spurious Allure Of Pass-Through Parity, Karen C. Burke
UF Law Faculty Publications
In 2017, Congress reduced tax rates on both corporate and noncorporate income. The drafters invoked the concept of pass-through parity to justify lower rates on noncorporate business income, resulting in a new and highly controversial deduction for pass-through owners under § 199A. The concept of pass-through parity conflates equitable treatment of different entity forms with equitable distribution of the ultimate tax burden among labor and capital. The flawed rationale for § 199A may be viewed as an attempt to preserve the pre-2017 preference for pass-through income; conceptually, the advantage of lower corporate rates is limited to the availability of a …
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, …