Law Commons^™

University Of Florida Introduces New Electronic Reference Room, Rosalie M. Sanderson, Betty W. Taylor

UF Law Faculty Publications

No abstract provided.

Rationalizing Hearsay: A Proposal For A Best Evidence Hearsay Rule, Michael L. Seigel

UF Law Faculty Publications

The enterprise of this article is the theoretical construction of an optimal solution to the hearsay conundrum. Its first task is the elucidation of the premises upon which a rational hearsay rule can be built. Thus, the article starts by exploring the relationship between hearsay doctrine and the foundation of all rational truth-seeking enterprises, inductive logic. The article continues with an examination of the relationship between hearsay evidence and trial dynamics, for a workable rule must take into account the actual functioning of our adversary system.'" This two-pronged analysis leads to the proposal of a "best evidence hearsay rule."

Intellectual Authority And Institutional Authority, Charles W. Collier

UF Law Faculty Publications

This is an essay about the power of ideas and the influence of institutions.

What Gibbon termed the pure. "force of persuasion," unaided and unhindered by institutional context, I refer to as "intellectual authority." This has been defined as "the authority exerted by arguments that make their way simply by virtue of a superior rationality and do not depend for their impact on the lines of power and influence operating in an institution." The contrastive notion of "institutional authority" refers to the nonintellectual influence exerted by social, political, cultural, historical, legal, literary, educational, religious, and other institutions. The nonintellectual influence …

The Use And Abuse Of Humanistic Theory In Law: Reexamining The Assumptions Of Interdisciplinary Legal Scholarship, Charles W. Collier

UF Law Faculty Publications

No abstract provided.

To Bear Or Not To Bear: Reproductive Freedom As An International Human Right, Berta E. Hernández-Truyol

UF Law Faculty Publications

The right to reproductive freedom is recognized and protected in virtually every corner of this world. Domestic and international tribunals have increasingly found that the right to privacy includes such a right. Using the various "sources" of international law as an analytical framework, this Article posits, based on an internationalist's perspective, that reproductive freedom -- as part of the penumbral zone of enumerated and existing human rights or as a particular right in se -- is now included in the body of protected international human rights. Consequently, any government interference with the individual's exercise of such freedom constitutes an impermissible …

Cultural Critique And Legal Change, Charles W. Collier

UF Law Faculty Publications

No abstract provided.

The Represented Client In A Settlement Conference: The Lessons Of G. Heileman Brewing Co. V. Joseph Oat Corp., Leonard L. Riskin

UF Law Faculty Publications

This Article sets out various perspectives that litigants, lawyers and judges commonly bring to settlement conferences, perspectives on lawyer-client relations, negotiation, and the role of the judicial host. In examining the opinions in the Heileman case, along with other materials, the Article attempts to uncover the underlying assumptions about the settlement conference that informed the behavior of the judges and lawyers in that case, arguing that Heileman's explanation lies in the lawyers' and judges' tendency to embrace one of two radically different visions of the settlement conference. The Article then catalogs the advantages and disadvantages of involving clients in settlement …

"Black And Blue Encounters" Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, Tracey Maclin

UF Law Faculty Publications

No abstract provided.

Venue Choice And Forum Shopping In The Bankruptcy Reorganization Of Large, Publicly Held Companies, Lynn M. Lopucki, William C. Whitford

UF Law Faculty Publications

An empirical study of the bankruptcy reorganization of the forty-three largest, publicly held companies to file and complete bankruptcy proceedings from 1979 to 1988 revealed extensive forum shopping. In virtually all cases examined by the authors, the law afforded a choice of venue. In a substantial number, the petitioning company engaged in "forum shopping" by choosing a venue where the company had little or no physical presence. Most often the venue was New York City. In iheir venue choices, petitioners usually sought to avoid venues that appeared hostile to extensions of exclusivity or that aggressively regulated attorneys' fees. The authors …

Current Administration Of U.S. Antidumping And Countervailing Duty Laws: Implications For Prospective U.S.-Mexico Free Trade Talks, Stephen J. Powell, Craig R. Giesse, Craig L. Jackson

UF Law Faculty Publications

This Article discusses the current administration of the U.S. antidumping and countervailing duty laws in proceedings involving products from Mexico. Specifically, this Article begins by providing an overview of the basic statutory and regulatory provisions of the U.S. antidumping duty law, emphasizing the application of certain provisions in cases involving imports from Mexico. The Article then focuses its discussion upon recent developments in the U.S. countervailing duty law that have had a unique effect upon Mexican exporters. The Article continues by highlighting the antidumping and countervailing duty provisions of the recently concluded U.S.-Canada Free Trade Agreement (the "FTA" or "Agreement"). …

Seeing The Constitution From The Backseat Of A Police Squad Car, Tracey Maclin

UF Law Faculty Publications

No abstract provided.

Bargaining Over Equity's Share In The Bankruptcy Reorganization Of Large, Publicly Held Companies, Lynn M. Lopucki

UF Law Faculty Publications

This Article reports some of the results of an empirical study of the bankruptcy reorganization of large, publicly held companies. We present data relevant to what many consider to be the central issue of reorganization theory-how the value of the reorganizing enterprise should be divided among the various claims and interests. We demonstrate that there is indeed systematic deviation from the absolute priority rule in favor of junior interests; but, with respect to large, publicly held corporations, the debate about how to prevent these deviations is, for the most part, a tempest in a teapot-the difference between absolute priority and …

Tax Treatment Of Employment-Related Personal Injury Awards: The Need For Limits, J. Martin Burke, Michael K. Friel

UF Law Faculty Publications

This article examines Section 104(a)(2) of the Internal Revenue Code and the litigation that has centered on the applicability of this Section to payments in settlement or other resolution of employment-related disputes arising out of an employment relationship and accompanied by charges of tortious conduct leveled at one or more of the parties. Part II reviews the origin of amounts received as damages on account of non-physical injuries. Part III analyzes the application of Section 104(a)(2) focusing on how courts have often blurred the distinction between what non-physical injuries are encompassed by the term “personal injury,” and whether a taxpayer …

Precedent And Legal Authority: A Critical History, Charles W. Collier

UF Law Faculty Publications

In this Article, Professor Charles Collier traces out a general theory of precedential authority through historical sources. The Article focuses on three particularly influential views of precedent: Wambaugh's concept of dictum, Oliphant's concept of stare decisis, and Goodhart's concept of ratio decidendi. These views illustrate an underlying tension between two distinct doctrines of precedential authority. The first doctrine, derived from humanistic thought, restricts-legal authority as narrowly as possible to the express terms of an original text. The second doctrine draws on the broad, generalizing tendencies of the empirical sciences and their corresponding conceptions of scientific authority. The two doctrines coexist …

A Model Wetlands Protection Ordinance: Legal Considerations, Mary Jane Angelo

UF Law Faculty Publications

Many counties in Florida are currently in the process of developing new wetlands protection ordinances, or revising old ones. While public policy supports strict regulation of activities in wetlands, many counties are reluctant to adopt restrictive ordinances because of the potential for large damages awards if the regulations are later found to be temporary takings. Recent Supreme Court case law has upheld the payment of compensation as an appropriate remedy for overly restrictive land use regulations compounding the fears of local governments. This paper summarizes the legal implications of a Model Wetlands Protection Ordinance developed by the author. In particular, …

Prenatal Caretaking: Limits Of State Intervention With And Without Roe, Sharon E. Rush

UF Law Faculty Publications

With or without Roe, difficult questions regarding the state's role in prenatal caretaking remain. Unless the Supreme Court addresses the assumptions underlying the abortion controversy, overruling Roe would not resolve the problem of allocating decisionmaking responsibility between the woman and the state during the woman's pregnancy. Fundamental constitutional questions about life and death, parental authority over the fetus, and the scope of the woman's right of privacy outside of abortion have not been answered by the Supreme Court.

The 1987 Legislative Session, Jon L. Mills

UF Law Faculty Publications

The 1987 Legislative session is one that will be remembered for many years; it signifies the year Florida grew up. As Sophocles said, "One must wait until the evening to see how splendid the day has been"; this landmark session will not easily be assessed for some time. For the past several years, Florida has been working to create a vision for its future and this year took its first steps toward that future. We have only just begun and, like the beginning of any long journey, we began by taking a first step. Our commitment today must be followed …

An Aggregate Approach To Indirect Exchanges Of Partnership Interests: Reconciling Section 1031 And Subchapter K, Karen C. Burke

UF Law Faculty Publications

This article examines indirect exchanges of partnership interests in light of the distinctive continuity-of-investment principles of section 1031 and Subchapter K of the Internal Revenue Code. Part II of the article focuses on the failure of judicial responses and alternative approaches prior to the 1984 Act to prevent the potential abuses of direct exchanges of partnership interests. Part III examines section 1031(a)(2)(D) against the background of two recent decisions by the United States Court of Appeals for the Ninth Circuit concerning successive tax-free exchanges. Part IV focuses on planning techniques involving like-kind exchanges coupled with partnership contributions and distributions. Part …

Egoism, Altruism, And Market Illusions: The Limits Of Law And Economics, Jeffrey L. Harrison

UF Law Faculty Publications

The primary objective of this Article is to question assumptions in order to show that the conventional economic approach to law and public policy has limited value. The arguments are founded on empirical evidence drawn from many fields of study. An underlying theme is that the current application of economic analysis to law should be regarded as an interim step toward the integration of law with the behavioral, natural, and social sciences.

Part I describes the two forms of the self-interest assumption more completely. This examination reveals that economics and the separate study of law and economics are caught in …

Genetically Engineered Plant Pesticides: Recent Developments In The Epa's Regulation Of Biotechnology, Mary Jane Angelo

UF Law Faculty Publications

This paper examines the EPA's new policy regulating plant pesticides and presents the legal, scientific and policy issues surrounding the regulation of genetically engineered plants. Part I introduces the concepts covered in this paper. Part II.A. discusses products that have originated from biotechnology. Part II.B. describes the EPA's legal authority for regulating plant pesticides and other biotechnology products. Part II.C. presents the history of federal regulation of biological pesticides and biotechnology products. Part III examines the controversy surrounding the use of genetically engineered plants, including the potential risks and benefits of genetically engineered plants and the public's perception of these …

Maternity Leave: Taking Sex Differences Into Account, Nancy E. Dowd

UF Law Faculty Publications

This Article focuses on restructuring the workplace in the context of maternity leave. Although most women are no longer, and, indeed, generally cannot be required to take maternity leave, many are not guaranteed leave or may be provided only with inadequate leave. A minority of states have addressed this problem by enacting statutes requiring that all employers provide job-protected maternity leave. Two of the statutes, the California and Montana provisions, have been challenged as discriminatory under Title VII of the Civil Rights Act of 1964 and the equal protection clause of the 14th Amendment, and the Supreme Court has recently …

Title Vii V. Seniority: The Supreme Court Giveth And The Supreme Court Taketh Away, Berta E. Hernández-Truyol

UF Law Faculty Publications

Congress intended to solve the widespread problem of nonegalitarian hiring practices by enacting title VII of the Civil Rights Act of 1964 (the Act), during the apogee of the civil rights era. The Act represented a national commitment to end discrimination and to promote equality in employment. The enactment of title VII spawned extensive commentary on the effect of facially neutral employment practices that perpetuated pre-Act discrimination. Particular controversy arose concerning the application of seniority rules to blacks in jobs or seniority units from which they previously had been excluded because of their race.

The problem of accommodating seniority systems …

Securities Markets For Small Issuers: The Barrier Of Federal Solicitation And Advertising Prohibitions, Stuart R. Cohn

UF Law Faculty Publications

How can small issuers find potential investors and stay within the confines of federal securities laws? That is a perplexing question given the very strong prohibitions against advertising and solicitation found in SEC rules and no-action letters. What the registration exemptions purport to give with one hand, i.e. ability to raise capital without the cost and delay of registration, the anti-solicitation rules take away with the other. These rules need to be lifted or modified if small businesses are to have a viable opportunity to seek potential investors.

An Overview Of Health Law Research And An Annotated Bibliography, Richard A. Danner, Claire M. Germain

UF Law Faculty Publications

This analysis and the following bibliography are designed to meet the needs of researchers attempting to locate information in the field of health law. The analysis is written from the perspective of law librarians, but the same information retrieval problems apply to health administrators, hospital and medical counsel, and academic lawyers interested in health law and administration.

The Improper Use Of Presumptions In Recent Criminal Law Adjudication, Charles W. Collier

UF Law Faculty Publications

This note argues that, in developing the contemporary mandatory-permissive standard, the Supreme Court has misunderstood the effects of presumptions on juries. Presumptions that are ‘permissive’ in theory may nevertheless be ‘mandatory’ in fact, thereby leading some juries to convict regardless of their beliefs and inclinations. Thus, these legal presumptions may undermine the moral sense and political function of the jury.

Part I of this note shows, through doctrinal analysis, that the mandatory-permissive distinction is an anomaly in the Court's jurisprudence. Part II shows that this distinction is at variance with a substantial body of empirical social science research. This part …

The Metamorphosis Of Comparable Worth, Nancy E. Dowd

UF Law Faculty Publications

The concept of comparable worth has as its factual predicate two typical characteristics of women's employment: occupational concentration or segregation and significantly lower wages compared to those paid to men. What continues to be most troubling about this employment pattern is its stubborn persistence, despite the increased presence of women in the workforce and the existence for over two decades of legislation prohibiting sex discrimination in employment.

The concept of comparable worth has provoked an outpouring of emotional rhetoric and scholarly analysis debating the concept’s viability and desirability. Rather than add to that debate, Professor Dowd traces the evolution of …

The Warren And Burger Courts On State, Parent, And Child Conflict Resolution: A Comparative Analysis And Proposed Methodology, Sharon E. Rush

UF Law Faculty Publications

Developing a legal framework for analyzing children's rights is difficult. In part, this difficulty stems from the inherent ambiguity of the term "child." Within this general rubric are individuals whose age, maturity, education, and developmental levels encompass a wide rage. A more important obstacle stems from the conflict between the democratic ideals of individual freedom and the sanctity of the family unit. Whether children can be given certain rights without destroying parental authority over the family is a dilemma. Taking into account these opposing principles, a simplified methodology for analyzing and resolving conflicts among the state, parent, and child is …

To Hold Or Not To Hold: Magneson, Bolker, And Continuity Of Investment Under I.R.C. Section 1031, J. Martin Burke, Michael K. Friel

UF Law Faculty Publications

This article examines the judicial and administrative development of the two holding requirements under the continuity of investment standards of section 1031 prior to decisions of the Tax Court and the Ninth Circuit in Magneson v. Commissioner and Bolker v. Commissioner, both of which expanded the boundaries of qualified holding and reemphasized the need for guidance from the Treasury or Congress on these issues. Next the article examines the subsequent impact of these decisions. Finally, the article suggests a standard to be followed in the future.

Foreign Experiences Toward The Development Of A National Legal Information Center, Claire M. Germain

UF Law Faculty Publications

This comparative study discusses whether selected foreign countries -- Canada, the United Kingdom, France, and the Federal Republic of Germany -- have a history of a movement toward the establishment of a national information center. The author examines the development of existing law libraries and libraries with large legal collections, analyzes the role played by the national library of each country, and describes some cooperative accomplishments at the regional and national level. Comparisons are drawn with what is expected of a national legal information center in the United States.

An Uneasy Relationship Between The Bankruptcy Reform Act And The Uniform Commercial Code: Delayed And Continued Perfection Of Security Interests, George L. Dawson

UF Law Faculty Publications

The widespread adoption of article 9 of the Uniform Commercial Code in the 1950s and 1960s resulted in an ‘uncertain correlation’ between state personal property security law and the Bankruptcy Act of 1898. Although the Bankruptcy Act of 1898 frequently relied upon existing state law to determine the validity of a secured creditor's interest in the personal property of a bankruptcy debtor, its provisions were more compatible with pre-Code personal property security law. As a result, courts often struggled to reconcile the meanings of the two statutes.

The enactment of the Bankruptcy Reform Act of 1978 held out the promise …