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Articles 61 - 90 of 1183
Full-Text Articles in Law
Thinking Like A Source State In A Digital Economy, Yariv Brauner
Thinking Like A Source State In A Digital Economy, Yariv Brauner
UF Law Faculty Publications
This Article proceeds as follows: Part I reviews the traditional U.S. international tax policy, followed by Part II that highlights the impact of the Tax Cuts and Jobs Creation Act of 2017 on such policy. Part III provides context to the proposals made by this Article with a discussion of the international discourse over the challenges that the digital economy presents to the international tax regime, while Part IV exposes and explains the role of the United States in this discourse. Finally, the Article concludes with modest proposals for U.S. action in response to the challenges presented by digital economy …
Populism And Transparency: The Political Core Of An Administrative Norm, Mark Fenster
Populism And Transparency: The Political Core Of An Administrative Norm, Mark Fenster
UF Law Faculty Publications
Transparency has become a preeminent administrative norm with unimpeachable status as a pillar of democracy. But the rise of right-wing populism, reminiscent of older forms of militaristic authoritarianism, threatens transparency’s standing. Recently elected governments in Europe, Latin America, and North America represent a counter-movement away from liberal-democratic institutions that promote the visibility and popular accountability that transparency promises. Contemporary populist movements have not, however, entirely rejected it as an ideal. The populist rebuke of power inequities and its advocacy for popular sovereignty implicitly and sometimes explicitly include a demand for a more visible, accessible state. Populists’ seemingly hypocritical embrace of …
Background And Implications Of China's E-Cny, Jiaying Jiang, Karman Lucero
Background And Implications Of China's E-Cny, Jiaying Jiang, Karman Lucero
UF Law Faculty Publications
The People’s Republic of China is a leading experimenter in central bank digital currencies (CBDCs). This Article explores the current background, deployment, features, potential impacts, challenges, and legal concerns of China’s CBDC: the electronic yuan, or E-CNY. This Article explains the potential significance of what is known and not known about E-CNY with a particular focus on how E-CNY might fit into existing legal and economic systems, both within China and internationally. On the surface, E-CNY looks transformative. When you dig a little deeper, however, most of the potential changes or transformations turn on broader institutional, political, and legal changes …
Debt And Taxes, David Hasen
Debt And Taxes, David Hasen
UF Law Faculty Publications
The federal income tax conceptualizes the standard loan transaction as an exchange of cash for promises to pay interest and to repay the amount borrowed by the term. This formulation is subtly wrong in ways that have led to a weaker foundation for existing tax rules than they merit. Conceptualizing loans instead as closely akin to leases places most of the tax rules for debt on sounder footing because it clarifies that the consideration paid for the use of the loan proceeds is interest. If interest is the cost of the use of money, then simple borrowing is a fully-paid-for …
Ad Tech & The Future Of Legal Ethics, Seth Katsuya Endo
Ad Tech & The Future Of Legal Ethics, Seth Katsuya Endo
UF Law Faculty Publications
Privacy scholars have extensively studied online behavioral advertising, which uses Big Data to target individuals based on their characteristics and behaviors. This literature identifies several new risks presented by online behavioral advertising and theorizes about how consumer protection law should respond. A new wave of this scholarship contemplates applying fiduciary duties to information-collecting entities like Facebook and Google.
Meanwhile, lawyers—quintessential fiduciaries—already use online behavioral advertising to find clients. For example, a medical malpractice firm directs its advertising to Facebook users who are near nursing homes with bad reviews. And, in 2020, New York became the first jurisdiction to approve lawyers’ …
The Status And Legitimacy Of M’Naghten’S Insane Delusion Rule, E. Lea Johnston, Vincent T. Leahy
The Status And Legitimacy Of M’Naghten’S Insane Delusion Rule, E. Lea Johnston, Vincent T. Leahy
UF Law Faculty Publications
This Article investigates jurisdictions’ compliance with M’Naghten’s directive for how to treat delusions in insanity cases and assesses the validity and reasonableness of courts’ application of the law. Most U.S. jurisdictions employ an insanity test roughly modeled on the rule articulated in the 1843 M’Naghten’s Case. This test focuses on a defendant’s inability to know, because of a mental disease, the nature of her act or its wrongfulness. But the M’Naghten judges also issued a second rule — particular to delusions — that has received much less attention. This rule holds that, when the defendant labors under a “partial delusion …
A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf
A Reign Of Error: Property Rights And Stare Decisis, Michael Allan Wolf
UF Law Faculty Publications
Mistakes matter in law, even the smallest ones. What would happen if a small but substantively meaningful typographical error appeared in the earliest published version of a U.S. Supreme Court opinion and remained uncorrected for several decades in versions of the decision published by the two leading commercial companies and in several online databases? And what would happen if judges, legal commentators, and practitioners wrote opinions, articles, and other legal materials that incorporated and built on that mistake? In answering these questions, this Article traces the widespread, exponential replication of an error (first appearing in 1928) in numerous subsequent cases …
A 'Public' Journey Through Covid-19: Donald Trump, Twitter, And The Secrecy Of U.S. Presidents’ Health, Mark Fenster
A 'Public' Journey Through Covid-19: Donald Trump, Twitter, And The Secrecy Of U.S. Presidents’ Health, Mark Fenster
UF Law Faculty Publications
Donald Trump ignored numerous governance norms in his one term as U.S. President, especially those that prescribe disclosure of official and personal financial information. His brief period of illness from COVID-19, which he broadcast to the world via his Twitter account, revealed the complexity of Trump’s relationship to the concept and norms of transparency that presume information’s necessity for a functional and accountable state. At the same time that Trump offered little in the way of coherent and authoritative information about his health, he also provided an enormous amount of seemingly “inside” and direct accounts of the progress of his …
"Defund The (School) Police"?: Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance
"Defund The (School) Police"?: Bringing Data To Key School-To-Prison Pipeline Claims, Michael Heise, Jason P. Nance
UF Law Faculty Publications
Nationwide calls to “Defund the Police,” largely attributable to the resurgent Black Lives Matter demonstrations, have motivated derivative calls for public school districts to consider “defunding” (or modifying) school resource officer (“SRO/police”) programs. To be sure, a school’s SRO/police presence—and the size of that presence—may influence the school’s student discipline reporting policies and practices. How schools report student discipline and whether it involves referrals to law enforcement agencies matter, particularly as they may fuel a growing “school-to-prison pipeline.” The school-to-prison pipeline research literature features two general claims that frame debates about changes in how public schools approach student discipline and …
Integrated Estuary Governance, Mary Jane Angelo, J.W. Glass
Integrated Estuary Governance, Mary Jane Angelo, J.W. Glass
UF Law Faculty Publications
Estuaries are complex, dynamic ecosystems that play a critical role in supporting crucial economic industries, such as commercial fishing and tourism, and providing the resources necessary to sustain coastal communities. A range of anthropogenic environmental stressors are threatening the health of estuaries throughout the world. Traditional top-down single resource focused environmental regulatory approaches have proved inadequate to protect and restore estuarine systems. In recent years, scientific and legal academics, as well as policymakers, have called for more holistic participatory approaches to addressing environmental challenges. Drawing on the literature on ecosystem management, integrated water resources management, collaborative governance, and adaptive management, …
Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin
Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin
UF Law Faculty Publications
The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people. One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination. “Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating – but never directly holding – that corporations are not protected by the self-incrimination clause. But the fact that a corporation cannot invoke the Fifth does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment …
Disclosing Discrimination, Stephanie Bornstein
Disclosing Discrimination, Stephanie Bornstein
UF Law Faculty Publications
In the United States, enforcement of laws prohibiting workplace discrimination rests almost entirely on the shoulders of employee victims, who must first file charges with a government agency and then pursue litigation themselves. While the law forbids retaliation against employees who complain, this does little to prevent it, in part because employees are also responsible for initiating any claims of retaliation they experience as a result of their original discrimination claims. The burden on employees to complain—and their justified fear of retaliation if they do so—results in underenforcement of the law and a failure to spot and redress underlying structural …
The New Parental Rights, Anne C. Dailey, Laura A. Rosenbury
The New Parental Rights, Anne C. Dailey, Laura A. Rosenbury
UF Law Faculty Publications
This Article sets forth a new model of parental rights designed to free children and families from the ideals of parent–child unity and family privacy that underlie the law’s expansive protection for parental rights. The law currently presumes that parents’ interests coincide with those of their children, creating an illusion of parent–child union that suppresses the very real ways in which children’s interests and identities, even at a young age, may depart from those of their parents. Expansive protection for parental rights also confines children to the private family, ignoring children’s broad range of interests beyond the family and thwarting …
Curing The First Amendment Scrutiny Muddle Through A Breyer-Based Blend Up? Toward A Less Categorical, More Values-Oriented Approach For Selecting Standards Of Judicial Review, Clay Calvert
UF Law Faculty Publications
This Article argues that the United States Supreme Court should significantly alter its current categorical approach for discerning standards of judicial review in free-speech cases. The present system should become nondeterminative and be augmented with a modified version of Justice Stephen Breyer’s long-preferred proportionality framework. Specifically, the Article’s proposed tack fuses facets of today’s policy, which largely pivots on distinguishing content-based laws from content-neutral laws and letting that categorization determine scrutiny, with a more nuanced, values-and-interests methodology. A values-and-interests formula would allow the Court to climb up or down the traditional ladder of scrutiny rungs – strict, intermediate or rational …
Missing Decisions, Merritt E. Mcalister
Missing Decisions, Merritt E. Mcalister
UF Law Faculty Publications
Significant numbers of federal appellate merits terminations—those decisions resolving appeals and other proceedings on the merits—are missing from Westlaw and Lexis, the leading commercial legal databases. Bloomberg Law has similar, and similarly incomplete, coverage. Across most of the circuits huge percentages—at least 25% or more—of the courts’ self-reported merits terminations, which predominately include unpublished adjudications, never make their way to navigable databases.
Although scholars have long considered how publication practices shapes access to court decisions—especially at the district court level—this is the first work to analyze commercial database access to unpublished federal appellate decisions. Since at least 2007, when a …
Scrutiny-Determination Avoidance In First Amendment Cases: Laudable Minimalism Or Condemnable Evasion?, Clay Calvert
Scrutiny-Determination Avoidance In First Amendment Cases: Laudable Minimalism Or Condemnable Evasion?, Clay Calvert
UF Law Faculty Publications
This Article examines the United States Supreme Court’s practice in First Amendment cases of not resolving the precise level of scrutiny that applies to measure a statute’s validity. Rather than opting for one of two tiers of scrutiny — one more rigorous than the other—the Court sometimes dodges the issue. It does this by concluding that a statute would not pass muster under the more lenient standard, thereby rendering it unnecessary to decide which test was, in fact, more appropriate. The Court thus adopts an “assuming-without-deciding” logic in such cases, simply supposing the lesser standard applies without definitively holding as …
Weaponizing Proof Of Harm In First Amendment Cases: When Scientific Evidence And Deference To The Views Of Professional Associations Collide In The Battle Against Conversion Therapy, Clay Calvert
UF Law Faculty Publications
This Article uses the U.S. Court of Appeals for the Eleventh Circuit’s divided decision in Otto v. City of Boca Raton in late 2020 as a springboard for examining battles in First Amendment jurisprudence over proof of causation of harm and the level of deference owed to the judgments of learned societies. A two-judge majority held in Otto that a pair of local ordinances banning speechbased conversion therapy on minors violated the First Amendment, with those measures failing the rigorous strict scrutiny standard of review. Crucial to the majority’s ruling was its conclusion that insufficient evidence exists that conversion therapy—also …
Temporary Termination: A Layoff Law Blueprint For The Covid Era, Rachel Arnow-Richman
Temporary Termination: A Layoff Law Blueprint For The Covid Era, Rachel Arnow-Richman
UF Law Faculty Publications
The COVID-19 pandemic led to Congress’ passage of two groundbreaking pieces of legislation, mitigating the financial toll on individuals unable to work due to the pandemic. The protections include: paid sick time, job protected leave for routine childcare, and expanded unemployment benefits. The current worker protection system affords insufficient rights in the event of an economic termination. The accommodations arising from the COVID-19 pandemic have long been demanded and could pave the way for enduring employment reform. This Article encourages the recognition of “temporary termination” for employees terminated for economic reasons. Arnow-Richman advocates for the following “temporary termination” rights: advance …
A Tale Of Two Formalisms: How Law And Economics Mirrors Originalism And Textualism, Neil H. Buchanan, Michael C. Dorf
A Tale Of Two Formalisms: How Law And Economics Mirrors Originalism And Textualism, Neil H. Buchanan, Michael C. Dorf
UF Law Faculty Publications
Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, …
The Discriminatory Executive & The Rule Of Law, Maryam Jamshidi
The Discriminatory Executive & The Rule Of Law, Maryam Jamshidi
UF Law Faculty Publications
Today, the executive enjoys unprecedented power, particularly in the area of national security. By and large, this authority is not meaningfully restrained by Congress or the courts. However, some scholars argue that the presidency is still kept in check by the rule of law and politics. According to this view, substantive and procedural laws and internal executive branch rules combine with political efforts by the public, like voting, to hold the President accountable. This Article challenges this view. It argues that the rule of law and politics do not always work together to restrain the executive. Instead, law can sometimes …
Transparency And The First, Mark Fenster
Transparency And The First, Mark Fenster
UF Law Faculty Publications
In his book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump, Stanley Fish neatly reverses the polarity of rights-based claims that the public enjoys, under the First Amendment’s free speech and press rights, a right to government information. Transparency and free speech ideals are indeed related, he concedes, because they share a political vision and conceptual grounding in the notion that robust conceptions of free speech carry a commitment to increase the flow of information. But this is not a good thing, Fish argues—rather, the relationship between the two merely …
To Report Or Not To Report: Data On School Law Enforcement, Student Discipline, Race, And The 'School-To-Prison Pipeline', Michael Heise, Jason P. Nance
To Report Or Not To Report: Data On School Law Enforcement, Student Discipline, Race, And The 'School-To-Prison Pipeline', Michael Heise, Jason P. Nance
UF Law Faculty Publications
The “school-to-prison pipeline” wreaks havoc on the lives of thousands of students each year, particularly with respect to students of color. While the effects of the COVID-19 pandemic on the school-to-prison pipeline remain unclear, the eventual return to full in-person teaching nationwide undoubtedly will renew this long-festering problem. The presence of law enforcement officers in schools is a key component of the school-to-prison pipeline and has generated considerable recent national attention, especially after George Floyd’s tragic death in the spring of 2020. Indeed, several robust empirical studies document that the increased presence of school resource (and/or police) officers in a …
Zoning Reformed, Michael Allan Wolf
Zoning Reformed, Michael Allan Wolf
UF Law Faculty Publications
It has been roughly a century since early advocates of zoning took notice of how crowded and congested housing conditions contributed to the spread of disease (including the then-recent H1N1 pandemic). The U.S. Supreme Court had just rejected on property rights grounds a city ordinance that expressly segregated neighborhoods by race. One hundred years later, the exposure of the weaknesses embedded in our system of public land use regulation during the crises of 2020 presents a unique and timely opportunity for serious consideration of major and minor adjustments to state statutes, local ordinances, and judicial decisions. This Article calls for …
Territorial Exceptionalism And The American Welfare State, Andrew Hammond
Territorial Exceptionalism And The American Welfare State, Andrew Hammond
UF Law Faculty Publications
Federal law excludes millions of American citizens from crucial public benefits simply because they live in the United States territories. If the Social Security Administration determines a low-income individual has a disability, that person can move to another state and continue to receive benefits. But if that person moves to, say, Guam or the U.S. Virgin Islands, that person loses their right to federal aid. Similarly with SNAP (food stamps), federal spending rises with increased demand—whether because of a recession, a pandemic, or a climate disaster. But unlike the rest of the United States, Puerto Rico, the Northern Mariana Islands, …
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.
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 …
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 …
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 …
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 …