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University of Florida Levin College of Law

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A Parent's Guide To Social Media Safety, Catherine Grimley May 2024

A Parent's Guide To Social Media Safety, Catherine Grimley

Gator TeamChild Juvenile Law Clinic

The goal of this White Paper is to provide parents and other caregivers with a compilation of literature from some of the most popular social media platforms in one convenient place. It aims to help parents understand what parental controls and account settings are available, so they can facilitate important conversations with their teens regarding social media safety.


Tort Liability For Physical Harm To Police Arising From Protest: Common-Law Principles For A Politicized World, Ellen M. Bublick, Jane R. Bambauer Apr 2024

Tort Liability For Physical Harm To Police Arising From Protest: Common-Law Principles For A Politicized World, Ellen M. Bublick, Jane R. Bambauer

UF Law Faculty Publications

When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts …


Children Seen But Not Heard, Stacey B. Steinberg Apr 2024

Children Seen But Not Heard, Stacey B. Steinberg

UF Law Faculty Publications

Children are expected to abide by the will of their parents. In the last 200 years, American jurisprudence has given parents the ability to control their children’s upbringing with few exceptions. The principle governing this norm is that parents know best and will use their better knowledge to protect their children’s welfare.

The COVID-19 pandemic, public school rules, and children’s privacy laws offer modern examples of regulations in which the interests of parents and children may not align. Minors may want access to vaccines, despite a parent’s refusal to sign a consent form. Minors may want to talk to their …


The Multitudinous Racial Harms Caused By Florida's Stop Woke And Anti-Dei Legislation, Katheryn Russell-Brown Jan 2024

The Multitudinous Racial Harms Caused By Florida's Stop Woke And Anti-Dei Legislation, Katheryn Russell-Brown

UF Law Faculty Publications

Since 2021, Florida has passed legislation that radically redefines how educators address race-related topics in the university classroom. Two laws in particular, HB 7 (Stop WOKE Act) and HB 999, which outlaws DEI programs at Florida universities, have led the charge. The goals of this Article are three-fold. First, to demonstrate how HB 7 and HB 999 have created a devasting and powerful educational force in Florida, a force that diminishes certain forms of racial discussion and inquiry in the college classroom. Second, to show the direct link between these laws and antebellum anti-literacy laws. The historical moments that separate …


Imperfect Insanity And Diminished Responsibility, Lea Johnston Jan 2024

Imperfect Insanity And Diminished Responsibility, Lea Johnston

UF Law Faculty Publications

Insanity’s status as an all-or-nothing excuse results in the disproportionate punishment of individuals whose mental disorders significantly impaired, but did not obliterate, their capacities for criminal responsibility. Prohibiting the trier of fact from considering impairment that does not meet the narrow definition of insanity contradicts commonly held intuitions about mental abnormality and gradations of responsibility. It results in systemic over-punishment, juror frustration, and, at times, arbitrary verdicts as triers of fact attempt to better apportion liability to blameworthiness.

This Article proposes a generic partial excuse of Diminished Responsibility from Mental Disability, to be asserted as an affirmative defense at the …


Ai, Artists, And Anti-Moral Rights, Derek E. Bambauer, Robert W. Woods Jan 2024

Ai, Artists, And Anti-Moral Rights, Derek E. Bambauer, Robert W. Woods

UF Law Faculty Publications

Generative artificial intelligence (AI) tools are increasingly used to imitate the distinctive characteristics of famous artists, such as their voice, likeness, and style. In response, legislators have introduced bills in Congress that would confer moral rights protections, such as control over attribution and integrity, upon artists. This Essay argues such measures are almost certain to fail because of deep-seated, pervasive hostility to moral rights measures in U.S. intellectual property law. It analyses both legislative measures and judicial decisions that roll back moral rights, and explores how copyright’s authorship doctrines manifest a latent hostility to these entitlements. The Essay concludes with …


Target(Ed) Advertising, Derek E. Bambauer Jan 2024

Target(Ed) Advertising, Derek E. Bambauer

UF Law Faculty Publications

Targeted advertising—using data about consumers to customize the ads they receive—is deeply controversial. It also creates a regulatory quandary. Targeted ads generate more money than untargeted ones for apps and online platforms. Apps and platforms depend on this revenue stream to offer free services to users, if not for their financial viability altogether. However, targeted advertising also generates significant privacy risks and consumer resentment. Despite sustained attention to this issue, neither legal scholars nor policymakers have crafted interventions that address both concerns, and existing regulatory regimes for targeted advertising have critical gaps.

This Article makes three key contributions to the …


Do Ais Dream Of Electric Boards?, Robert J. Rhee Jan 2024

Do Ais Dream Of Electric Boards?, Robert J. Rhee

UF Law Faculty Publications

When artificial intelligence (“AI”) acquires self-awareness, agency, and unique intelligence, it will attain ontological personhood. Management of firms by AI would be technologically and economically feasible. The law could confer AI with the status of legal personhood, as it did with the personhood of traditional business firms in the past, thus dispensing with the need for inserting AI as property within the legal boundary of a firm. As a separate and distinct entity, AI could function independently as a manager in the way that legal or natural persons do today: i.e., AI as director, officer, partner, member, or manager. Such …


Holdings As Hypotheses: Teaching Contextual Understanding And Enhancing Engagement, Lisa M. De Sanctis Jan 2024

Holdings As Hypotheses: Teaching Contextual Understanding And Enhancing Engagement, Lisa M. De Sanctis

UF Law Faculty Publications

When the Pinball Wizard asked his well-timed question, he not only lit up the 1L classroom with a cacophony of opinions but also illuminated deep confusion about the meaning of, and distinctions between, “rules” and “holdings.”

The practice of both oversimplifying and conflating the parts of a judicial opinion, particularly rules and holdings, is common among law professors, law school success materials, and, to an extent, even legal writing texts. Coupled with the novice law student’s search for right answers and found meaning, 1Ls often find themselves understandably frustrated and confused. This Article argues that the resulting confusion about rules …


Bankruptcy Fiduciaries, Christopher D. Hampson Jan 2024

Bankruptcy Fiduciaries, Christopher D. Hampson

UF Law Faculty Publications

Does social enterprise end with insolvency? Is bankruptcy all about the bottom line? The answer to these questions begins with understanding the estate in bankruptcy and the fiduciaries that control its fate. Yet the law of fiduciary duties in bankruptcy is undertheorized, conflicted, and muddled. After almost fifty years of confusion, this Article provides the first comprehensive examination of the nature and source of fiduciary duties in bankruptcy. Although the Supreme Court has intoned “maximize the value of the estate” as a shorthand, I argue that the trustee’s duty of obedience in reorganization cases gives rise to a “duty to …


Digital Dollar: Privacy And Transparency Dilemma, Jiaying Jiang Jan 2024

Digital Dollar: Privacy And Transparency Dilemma, Jiaying Jiang

UF Law Faculty Publications

Many have voiced concerns that a digital dollar, a digital form of central bank money, will facilitate government surveillance, thus depriving users of privacy. Contrary to popular belief, this Article investigates critical technical designs proposed by leading think tanks, central banks, and scholars from interdisciplinary fields, it reaches a surprising conclusion: a digital dollar can offer better privacy protection than existing digital payment systems. The Article argues that those expressing concerns have made two flawed assumptions: (1) that the digital dollar data is fully transparent regarding personal information and transaction details, and (2) that the government or the Federal Reserve …


Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky Dec 2023

Shields Up For Software, Derek E. Bambauer, Melanie J. Teplinsky

UF Law Faculty Publications

This Article contends that the National Cybersecurity Strategy's software liability regime should incorporate two safe harbors. The first would shield software creators and vendors from liability for decisions related to design, implementation, and maintenance, as long as those choices follow enumerated best practices. The second—the “inverse safe harbor”—would have the opposite effect: coders and distributors who engaged in defined worst practices would automatically become liable. This Article explains the design, components, and justifications for these twin safe harbors. The software safe harbors are key parts of the overall design of the new liability regime and work in tandem with the …


Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol Dec 2023

Who's Afraid Of Being Woke? – Critical Theory As Awakening To Erascism And Other Injustices, Berta E. Hernández-Truyol

UF Law Faculty Publications

Woke means “the belief there are systemic injustices in American society and the need to address them.” Ryan Newman, General Counsel to Governor of Florida.

Stopping wokeness is to combat the belief there are systemic injustices in American society which, true to form, does sound a lot like the opposite of being awake, and that is to say, totally asleep. Alex Wagner.

[B]y condemning the word “Woke” the establishment is not only attacking African American language. It also [is] disparaging the whole concept of being “awake” which I believe is one of the essential elements of moral and religious consciousness. …


Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf May 2023

Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf

UF Law Faculty Publications

In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, …


Beyond The Glass Ceiling: Panes Of Equity Partnership, Rachel Arnow-Richman Apr 2023

Beyond The Glass Ceiling: Panes Of Equity Partnership, Rachel Arnow-Richman

UF Law Faculty Publications

This Article, prepared for a “micro-symposium” on Professor Kerri Stone’s monograph Panes of the Glass Ceiling (2022), explores the partnership pay gap in large law firms and the role of high-profile litigation in facilitating pay equity. There is a rich literature and extensive data on the gender attainment gap in elite law practice, particularly with regard to women’s attrition from practice and poor representation within the partnership ranks. Less attention has been paid to the way in which the exceptional women who achieve equity partner status continue to lag behind their male peers. This Article explores “Women v. BigLaw,” a …


Florida's Baker Act Laws: How Florida's Excessive Use Of Baker Acts Can Be Harmful To Children, Kaitlin Gibbs Apr 2023

Florida's Baker Act Laws: How Florida's Excessive Use Of Baker Acts Can Be Harmful To Children, Kaitlin Gibbs

Gator TeamChild Juvenile Law Clinic

The goal of this White Paper is to provide an overview of Florida’s Baker Act Laws. Additionally, this White Paper will show how the excessive use of Baker Acts in Florida can have harmful effects on children, especially those in the dependency system, and potential solutions to reform the Baker Act process.


Justice Delayed: Government Officials' Authority To Wind Down Constitutional Violations, Neil H. Buchanan, Michael C. Dorf Mar 2023

Justice Delayed: Government Officials' Authority To Wind Down Constitutional Violations, Neil H. Buchanan, Michael C. Dorf

UF Law Faculty Publications

Upon finding that a government program is unconstitutional, courts in the United States sometimes allow executive officials a grace period to wind it down rather than insisting on its immediate cessation. Courts likewise occasionally afford a legislature a grace period to repeal an unconstitutional law. Yet no one has even attempted to explain the source of authority for allowing ongoing constitutional violations or to prescribe the limits on permissible compliance delays. Until now.

Judicial toleration of a continuing constitutional violation can be conceptualized as an exercise of the equitable discretion to withhold injunctive relief, but that rationale does not justify …


On Fires, Floods, And Federalism, Andrew Hammond Jan 2023

On Fires, Floods, And Federalism, Andrew Hammond

UF Law Faculty Publications

In the United States, law condemns poor people to their fates in states. Where Americans live continues to dictate whether they can access cash, food, and medical assistance. What’s more, immigrants, territorial residents, and tribal members encounter deteriorated corners of the American welfare state. Nonetheless, despite repeated retrenchment efforts, this patchwork of programs has proven remarkably resilient. Yet, the ability of the United States to meet its people’s most basic needs now faces an unprecedented challenge: climate change. As extreme weather events like wildfires and hurricanes become more frequent and more intense, these climate-fueled disasters will displace and impoverish more …


Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister Jan 2023

Macro-Judging And Article Iii Exceptionalism, Merritt E. Mcalister

UF Law Faculty Publications

Over the last half-century, the federal courts have faced down two competing crises: an increase in small, low-value litigation thought unworthy of Article III attention and an increase in the numbers and complexity of “big” cases thought worthy of those resources. The choice was what to prioritize and how, and the answer the courts gave was consistent across all levels of the federal judiciary. Using what this Article calls “macro-judging,” Article III judges entrenched their own power and autonomy to focus on the work they deemed most “worthy” of their attention, while outsourcing less “important” work to an array of …


Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke Jan 2023

Deconstructing Employment Contract Law, Rachel Arnow-Richman, J.H. Verkerke

UF Law Faculty Publications

Employment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reform. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools they need to resolve recurring, real-world disputes.

This article offers a new, comprehensive historical account that exposes the formalistic and anti …


The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea Jan 2023

The End Of Balancing? Text, History & Tradition In First Amendment Speech Cases After Bruen, Clay Calvert, Mary-Rose Papandrea

UF Law Faculty Publications

This Article examines the potential impact on First Amendment free-speech jurisprudence of the U.S. Supreme Court’s increasing reliance on text, history, and tradition in 2022 decisions such as New York State Rifle & Pistol Association v. Bruen. In Bruen, the Court embraced a new test for examining Second Amendment cases. It concentrates on whether there is a historical tradition of regulating the conduct in question, and it eliminates any use of constitutionally common means-end standards of review such as strict and intermediate scrutiny. Those two scrutiny standards often guide the Court’s free-speech decisions. The Bruen majority, however, asserted that its …


Privacy Implications Of Central Bank Digital Currency, Jiaying Jiang Jan 2023

Privacy Implications Of Central Bank Digital Currency, Jiaying Jiang

UF Law Faculty Publications

One hundred five countries, representing over 95 percent of global GDP, are exploring central bank digital currencies (CBDCs), a new form of digital money that is different from privately issued cryptocurrencies and stablecoins. As central banks worldwide grapple with CBDC design options, privacy has become a critical feature and concern. Many central banks, government agencies, NGOs, think tanks, and even the general public have already addressed the importance of privacy and called for privacy in CBDC systems. Some economists, computer scientists, engineers, and legal scholars have already moved forward to design a privacy-preserving CBDC.

However, when addressing the importance and …


Diminished Criminal Responsibility: A Multinational Comparative Review, Lea Johnston, Kendall D. Runyan, Fernando José Silva, Franscisco Maldonado Fuentes Jan 2023

Diminished Criminal Responsibility: A Multinational Comparative Review, Lea Johnston, Kendall D. Runyan, Fernando José Silva, Franscisco Maldonado Fuentes

UF Law Faculty Publications

This article reviews the legal frameworks of diminished criminal responsibility in eighteen civil law jurisdictions across the globe—Brazil, Chile, China, the Czech Republic, Finland, France, Germany, Greece, Italy, Japan, Luxembourg, Poland, Portugal, Russia, Spain, Switzerland, Taiwan, and Turkey. Specifically, it reports the legal standards and main features of partial responsibility, associated penalty reductions, and potential dispositions following a partial responsibility finding. It also surveys empirical data on the prevalence of diminished responsibility as compared to criminal nonresponsibility. This article, which reflects contemporary penal codes and draws from both English and non-English sources, is the only known existing source to compile …


How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster Jan 2023

How Reputational Nondisclosure Agreements Fails (Or, In Praise Of Breach), Mark Fenster

UF Law Faculty Publications

Investigative reporters and the #MeToo movement exposed the widespread use of non-disclosure agreements intended to maintain confidentiality about one or both contracting parties’ embarrassing acts. These reputational NDAs (RNDAs) have been widely condemned and addressed in the past half-decade by legislators, activists, and academics. Their exposure, often via victims’ breaches, revealed a curious and distinct dilemma for the non-breaching party whose reputation is vulnerable to disclosure. In most contracts, non-breaching parties might choose to forgo enforcement because of the cost and uncertain success of litigation and the availability of other pathways to a satisfactory resolution. Parties to a RNDA, by …


The Use Of Ai-Based Technologies In Arbitrating Trust Disputes, Lee-Ford Tritt Jan 2023

The Use Of Ai-Based Technologies In Arbitrating Trust Disputes, Lee-Ford Tritt

UF Law Faculty Publications

An important debate has emerged concerning the potential application of Artificial Intelligence ("AI") to the arbitration decision-making process. At issue in this debate is the proper role, if any, of AI in rendering binding decisions. Although, to date, AI is not sufficiently developed to replace human arbitrators in making binding decisions, this has not stopped academics, judges, and practitioners from engaging in heated discourse on the topic. Yet, fervent participants on both sides of this debate have confined the parameters of this discussion to arbitration generically, neglecting any application to specific disciplines of law. Insights from these discussions have limited …


Exploring Parents' Knowledge Of Dark Design And Its Impact On Children's Digital Well-Being, Claire Bessant, Luei Lin Ong, Laurel Aynne Cook, Mariea Grubbs Hoy, Beatriz Pereira, Alexa Fox, Emma Nottingham, Stacey Steinberg, Pingping Gan Jan 2023

Exploring Parents' Knowledge Of Dark Design And Its Impact On Children's Digital Well-Being, Claire Bessant, Luei Lin Ong, Laurel Aynne Cook, Mariea Grubbs Hoy, Beatriz Pereira, Alexa Fox, Emma Nottingham, Stacey Steinberg, Pingping Gan

UF Law Faculty Publications

Dark design (also known as deceptive design; Colin et al., 2018 and dark patterns; Mathur et al., 2019) is evidenced by “a user interface carefully crafted to trick users into doing things they might not otherwise do” (Brignull, 2022; page 1). Much dark design is constructed with monetization as the primary goal- even in spaces without ecommerce design (e.g., free-to-play apps representing >95% of all mobile apps; Fitton et al. 2021). Many recent dark design strategies are also oriented towards collecting user information. Concerns about children’s vulnerability to inappropriate online marketing and economic fraud, and the impact of organisational data …


State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield Jan 2023

State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield

UF Law Faculty Publications

By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …


A Game Theory View Of Family Law: Divorce Planning For A 500% "Family-Tax", Steven J. Willis Jan 2023

A Game Theory View Of Family Law: Divorce Planning For A 500% "Family-Tax", Steven J. Willis

UF Law Faculty Publications

Divorces involve money, which can prompt fierce legal battles. These include family obligations for child support, alimony, and property division. Small income changes can have huge consequences. For example, a $1,000 income increase can result in $5,000 of increased family obligations. A $10,000 increase can produce $50,000 of obligations. Or a $10,000 decrease can result in $50,000 of reduced obligations.


"The Stop Woke Act": Hb 7, Race, And Florida's 21st Century Anti-Literacy Campaign, Katheryn Russell-Brown Jan 2023

"The Stop Woke Act": Hb 7, Race, And Florida's 21st Century Anti-Literacy Campaign, Katheryn Russell-Brown

UF Law Faculty Publications

Florida’s Stop the Wrongs to Our Kids and Employees Act (Stop WOKE) took effect July 1, 2022. The new law, known as House Bill 7 (HB 7), regulates how race issues can be taught in the K-20 educational system and imposes stiff sanctions for violations. This Article provides an incisive analysis of HB 7, with a particular focus on the law school classroom. It begins with a discussion of anti-literacy laws adopted during slavery and how these laws prohibited enslaved Blacks from learning to read and write. The historical analysis establishes that HB 7 is a modern-day iteration of anti-literacy …


Everything You Want: The Paradox Of Customized Intellectual Property Regimes, Derek E. Bambauer Jan 2023

Everything You Want: The Paradox Of Customized Intellectual Property Regimes, Derek E. Bambauer

UF Law Faculty Publications

Special interest groups share a dream: enacting legislation customized for, and hopefully drafted by, their industry. Customized rules created via legislative capture, though, are the worst case scenario from a public choice perspective: they enable narrow interests to capture rents without generating sufficient societal benefits. American intellectual property law offers useful case studies in legislative capture: special interests have created their own rules three times in the past forty years with the Semiconductor Chip Protection Act, Audio Home Recording Act, and Vessel Hull Design Protection Act. Paradoxically, though, these customized IP systems have consistently disappointed their drafters: all three of …