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2002

UF Law Faculty Publications

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Full-Text Articles in Law

Reflections On Racism And World Order, Winston P. Nagan Oct 2002

Reflections On Racism And World Order, Winston P. Nagan

UF Law Faculty Publications

This Article is about international racism. Racism is not simply a local or national phenomenon, it is an immense global problem. Indeed, its tentacles stretch from the local to the global and back to the local. Let us put the picture of international racism into perspective by tying it to the claims made to eradicate racism in economic relations. Apart from affirmative action, there are two other approaches: either to assert the notion that reparations is a way to ameliorate the worst manifestations of racism and provide for racial justice, or to join that with the notion that there is …


I. Opening Remarks (Proceedings Of The Third Annual Legal & Policy Issues In The Americas Conference), Jon L. Mills Oct 2002

I. Opening Remarks (Proceedings Of The Third Annual Legal & Policy Issues In The Americas Conference), Jon L. Mills

UF Law Faculty Publications

Proceedings of the Third Annual Legal & Policy Issues in the Americas Conference (2002)


Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur Oct 2002

Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

UF Law Faculty Publications

This Article argues that judicial deference to the military, at least as the principle is understood in contemporary decisions of the Court, is surprisingly recent and not at all constitutionally established. In fact, this deference departs from constitutional text and from a line of Supreme Court precedent concerning civilian-military relations extending back before the Civil War. Broad judicial deference to military discretion is only a creation of the post-Vietnam, all-volunteer military and, more specifically, only a creation of one single Justice of the Supreme Court, William H. Rehnquist.

In Greer v. Spock, First Amendment values were displaced narrowly in the …


Vii. Legal Education In The Americas, A. An Introduction (Proceedings Of The Third Annual Legal & Policy Issues In The Americas Conference), Jon L. Mills Oct 2002

Vii. Legal Education In The Americas, A. An Introduction (Proceedings Of The Third Annual Legal & Policy Issues In The Americas Conference), Jon L. Mills

UF Law Faculty Publications

Proceedings of the Third Annual Legal & Policy Issues in the Americas Conference (2002)


Estate Tax Repeal: Through The Looking Glass, Karen C. Burke, Grayson M.P. Mccouch Oct 2002

Estate Tax Repeal: Through The Looking Glass, Karen C. Burke, Grayson M.P. Mccouch

UF Law Faculty Publications

The Economic Growth and Tax Relief Reconciliation Act of 2001 promises dramatic reductions in income and estate taxes over a nine-year phase-in period, culminating in 2010 with complete repeal of the estate tax and introduction of a new carryover basis regime for inherited property. The Act's sunset provision automatically terminates these substantive changes at the end of 2010 and reinstates prior law for 2011 and subsequent years. In effect, the sunset provision transforms the large-scale tax cuts into a temporary measure and leaves open the question of whether to make those cuts permanent. Since the Act was signed into law, …


Proceedings Of The Third Annual Legal & Policy Issues In The Americas Conference (2002) -- V. The Export Of Medical Supplies And Agriculture Products In Cuba -- D. Cuban Economic Relations, Berta E. Hernández-Truyol Oct 2002

Proceedings Of The Third Annual Legal & Policy Issues In The Americas Conference (2002) -- V. The Export Of Medical Supplies And Agriculture Products In Cuba -- D. Cuban Economic Relations, Berta E. Hernández-Truyol

UF Law Faculty Publications

Proceedings of the Third Annual Legal & Policy Issues in the Americas Conference (2002)


Preserving Monumental Landscapes Under The Antiquities Act, Christine A. Klein Sep 2002

Preserving Monumental Landscapes Under The Antiquities Act, Christine A. Klein

UF Law Faculty Publications

This Article examines the Antiquities Act, a 1906 statute that delegates authority to the President to establish national monuments on federal lands for the protection of prehistoric structures and relics. This modest statute, originally a scant one page in length, has set off a century of intermittent controversy that its drafters could not have anticipated. Although Congress probably intended that the statute merely protect archaeological ruins from looting by treasure hunters, presidents quickly began to utilize the statute to preserve large natural landscapes -- ranging from President Theodore Roosevelt's establishment of the 800,000-acre Grand Canyon National Monument in 1908 to …


Dr Ethics Book Brings It All Together, Jonathan R. Cohen Jul 2002

Dr Ethics Book Brings It All Together, Jonathan R. Cohen

UF Law Faculty Publications

Dispute resolution practice has changed dramatically over the past several decades. The traditional litigation model has increasingly given way to a “multi-door” vision of varied dispute resolution practices. With that functional change in how we process disputes has come a pressing need to address the varied ethical challenges of these varied practices. Dispute Resolution Ethics is a marvelous contribution toward that effort.


Identity Matters, Sharon E. Rush Jul 2002

Identity Matters, Sharon E. Rush

UF Law Faculty Publications

From the Sixth Annual LatCrit Conference in Gainesville, Florida on April 26-29, 2001.

Cluster VII: Race, Gender, and Sexuality


The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush Jul 2002

The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush

UF Law Faculty Publications

Some books included in the canon of American literature no longer belong there, because they presently lack normative approval. Adapting concepts found in constitutional law, an anticanon of American literature functions the way the anticanon of constitutional law would operate and explicitly removes books from the canon. In law, the anticanon identifies outdated interpretations of the constitution. In education, it is time to consider removing from the canon and placing in an anticanon books that are inconsistent with multicultural education. One such book is Mark Twain's Huckleberry Finn, which is part of the canon of American literature and viewed as …


May Harvey Rest In Peace: Lakin V. Postal Life And Casualty Company, Robert H. Jerry Ii Jul 2002

May Harvey Rest In Peace: Lakin V. Postal Life And Casualty Company, Robert H. Jerry Ii

UF Law Faculty Publications

There is a case that has piqued my interest in recent years. Lakin v. Postal Life & Casualty Co., is a relatively simple story of two men whose paths crossed in Kansas City, Missouri, more than forty years ago. One was a down-in-the-luck drifter, and the other a con-artist who made his living by taking advantage of others. These two men would be long forgotten but for the fact that their final interactions during a hunting trip near Pleasant Hill, Missouri, raised some insurance law issues that ultimately made their way to the Missouri Supreme Court. Lakin stands for the …


Progressive Race Blindness?: Individual Identity, Group Politics, And Reform, Darren Lenard Hutchinson Jun 2002

Progressive Race Blindness?: Individual Identity, Group Politics, And Reform, Darren Lenard Hutchinson

UF Law Faculty Publications

Critical Race Theorists advance race consciousness as a positive instrument for political and legal reform. A growing body of works by left-identified scholars, however, challenges this traditional progressive stance toward race consciousness. After summarizing the contours of this budding literature, this Article criticizes the "progressive race blindness" scholarship on several grounds and offers an alternative approach to race consciousness that balances skepticism towards the naturalness of race with a healthy appreciation of the realities of racial subjugation and identity.


Euclid Lives: The Survival Of Progressive Jurisprudence, Charles M. Haara, Michael Allan Wolf Jun 2002

Euclid Lives: The Survival Of Progressive Jurisprudence, Charles M. Haara, Michael Allan Wolf

UF Law Faculty Publications

The Supreme Court's expanded use of regulatory takings is making a highly controversial and confusing concept more difficult to apply and defend. The Court and commentators are invited to explore a different approach-- Progressive jurisprudence, as represented by the Court's enduring opinion in Village of Euclid v. Ambler Realty Co . This Commentary examines the reinvigoration of the Takings Clause and, in historical and ideological terms, discusses the Progressiveness of Euclid and of the regulatory scheme the Euclid Court approved. Professors Haar and Wolf identify and explore five inquiries concerning the character of regulations affecting the use, ownership, and value …


International Intellectual Property, Access To Health Care, And Human Rights: South Africa V. United States, Winston P. Nagan Apr 2002

International Intellectual Property, Access To Health Care, And Human Rights: South Africa V. United States, Winston P. Nagan

UF Law Faculty Publications

This Article examines the question of access to patented medicines in international law. It analyzes the extent to which international agreements may lawfully limit affordable versions of these medicines that may be available through parallel imports or compulsory licensing procedures. It considers the concept of intellectual property rights from a national and international perspective to determine how these rights must be sensitive to matters of national sovereignty when extraordinary, life-threatening diseases afflict societies in catastrophic ways. This Article suggests that viewing property (including intellectual property) as a human right requires that its scope be delimited and understood in the context …


A Background History Of Directional Drilling In Michigan, Christine A. Klein Apr 2002

A Background History Of Directional Drilling In Michigan, Christine A. Klein

UF Law Faculty Publications

Why should we care about directional drilling? A lot of people care, both at the federal and state levels. Many politicans have weighed in on this issue of whether or not directional drilling should be permitted. Beyond state politics, an interesting legal debate has begun over whether the federal or state government has primary regulatory authority over this amphibious sort of drilling, which starts on the land but ends up under the Great Lakes.


Remembering Harry Bitner: Law Librarian, Professor, And Wonderful Colleague, Claire M. Germain Apr 2002

Remembering Harry Bitner: Law Librarian, Professor, And Wonderful Colleague, Claire M. Germain

UF Law Faculty Publications

Professor Harry Bitner was an outstanding law librarian who shaped many of our best libraries, who was a mentor to many younger law librarians, and who provided leadership to the law library profession and to legal education generally.


Legislating Apology: The Pros And Cons, Jonathan R. Cohen Apr 2002

Legislating Apology: The Pros And Cons, Jonathan R. Cohen

UF Law Faculty Publications

Should apologies be admissible into evidence as proof of fault in civil cases? While this question is a simple one, its potential ramifications are great, and legislative and scholarly interest in the admissibility of apologies has exploded. Shortly after the idea of excluding apologies from admissibility into evidence was raised in academic circles three years ago, it rapidly spread to the policy arena. For example, California and Florida enacted laws in 2000 and 2001 respectively excluding from admissibility apologetic expressions of sympathy ("I'm sorry that you are hurt") but not fault-admitting apologies ("I'm sorrythat I injured you") after accidents. Eight …


The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin Apr 2002

The Contemplative Lawyer: On The Potential Contributions Of Mindfulness Meditation To Law Students, Lawyers, And Their Clients, Leonard L. Riskin

UF Law Faculty Publications

This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work.

Part I of this article describes a number of problems associated with law school and law practice. Part II sets forth a variety of ways in which lawyers, law schools, and professional organizations have tried to …


Panel: Ethical Dilemmas: Finding Common Ground On Controversial Issues, Lesley Blackner, Richard C. Foltz, Brion Blackwelder, Lisa C. Schiavinato, Alyson C. Flournoy Apr 2002

Panel: Ethical Dilemmas: Finding Common Ground On Controversial Issues, Lesley Blackner, Richard C. Foltz, Brion Blackwelder, Lisa C. Schiavinato, Alyson C. Flournoy

UF Law Faculty Publications

This panel discussion applied ethics to the theme of the 8th Annual Public Interest Environmental Conference. Panelists examined ways ethics may help reconcile industry (such as business and development) with environmentalism.


Out Of The Shadows: Traversing The Imaginary Of Sameness, Difference, And Relationalism - A Human Rights Proposal, Berta E. Hernández-Truyol Apr 2002

Out Of The Shadows: Traversing The Imaginary Of Sameness, Difference, And Relationalism - A Human Rights Proposal, Berta E. Hernández-Truyol

UF Law Faculty Publications

This work seeks to develop a methodology that serves a women's anti-subordination project. To achieve this goal, Part II sets out the theoretical background of feminist theory (II.A) and three waves of feminism (II.B). Part II.C articulates the feminist revelations about law these analytical frameworks have engendered.

This project sets out to craft a methodology that can assist the goal of full personhood for women. Women's full personhood is a substantive concept that, as detailed in Part III, I ground on international human rights notions of fundamental rights - rights that we have, or ought to have, because we are …


The Child As Other: Race And Differential Treatment In The Juvenile Justice System, Kenneth B. Nunn Jan 2002

The Child As Other: Race And Differential Treatment In The Juvenile Justice System, Kenneth B. Nunn

UF Law Faculty Publications

The juvenile justice system is rife with disparities between white and non-white children. African American children are not the only ones who may be treated as the "other" inthe juvenile justice system. Latino, Native American, Asian, and even white children may be "othered" in the appropriate social context. This article focuses on African American children and their condition, because it is exemplary of how all children who are perceived as children of the "other" are treated and because, in some ways, the treatment of African American children, in a bipolar racial hierarchy, is unique.


Let Sleeping Dogs Lie: Why The Supreme Court Should Leave Fourth Amendment History Unabridged, Tracey Maclin Jan 2002

Let Sleeping Dogs Lie: Why The Supreme Court Should Leave Fourth Amendment History Unabridged, Tracey Maclin

UF Law Faculty Publications

No abstract provided.


Toward A Trademark-Based Liability System, Lynn M. Lopucki Jan 2002

Toward A Trademark-Based Liability System, Lynn M. Lopucki

UF Law Faculty Publications

No general rule of law renders trademark owners liable for products sold or business conducted under the trademark. This essay proposes the adoption of such a rule. The rationale for the change is that businesses are known by their trademarks, not their entity names, in the marketplace. The vast majority of customers - both businesses and consumers - select the persons with whom they will deal, and contract with those persons, on the basis of trademarks. The entity structures of businesses (corporate groups, franchises, joint ventures, etc.) are generally invisible to customers. Yet under current law the businesses' liabilities to …


Reparations Theory And Postcolonial Puerto Rico: Some Preliminary Thoughts, Pedro A. Malavet Jan 2002

Reparations Theory And Postcolonial Puerto Rico: Some Preliminary Thoughts, Pedro A. Malavet

UF Law Faculty Publications

This article primarily focuses on the plight of the Puerto Ricans on the island because, in addition to their flawed social construction by the United States and lack of national political power, they are also legally constructed as second-class citizens. In defining the legal rights of Puerto Ricans, the U.S. Supreme Court has held that territorial citizens are entitled to fewer constitutional protections than U.S. citizens residing in any of the fifty states. The racist and essentialist social construction of the Puerto Ricans as inassimilable, the denial of legal rights by the courts, along with the democratic deficit which deprives …


Insurance, Terrorism, And 9/11: Reflections On Three Threshold Questions, Robert H. Jerry Ii Jan 2002

Insurance, Terrorism, And 9/11: Reflections On Three Threshold Questions, Robert H. Jerry Ii

UF Law Faculty Publications

For most of us, the collapse of the World Trade Center towers exists at the outermost edge of human comprehension. Even after one visits Ground Zero, the events of 9/11 retain a surreal quality, invoking feelings beyond words as one tries to contemplate losses immeasurable with numbers. Indeed, the insurance losses are insignificant when compared to the human tragedies caused by the terrorist attacks -- and in insurance terms, we witnessed the most costly, complex events to transpire in a single day in the history of the planet. Many years will pass before all the insurance ramifications of 9/11 are …


Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills Jan 2002

Florida On Trial: Federalism In The 2000 Presidential Election, Jon L. Mills

UF Law Faculty Publications

This article analyzes how Florida's state election laws operated during the aftermath of the 2000 presidential election. The intersection of law and politics in this controversy was critical. Political considerations affected decisions in both the Bush and Gore camps. The aftermath of the 2000 election found the federal government, the National Conference of State Legislatures, and the State of Florida (among others) commissioning task forces and committees to investigate and suggest election reforms.

Ultimately, the State of Florida passed significant election reform legislation. On May 10, 2001, Florida enacted sweeping election reform legislation entitled the Florida Election Reform Act of …


Brandenburg And The United States' War On Incitement Abroad: Defending A Double Standard, Lyrissa Barnett Lidsky Jan 2002

Brandenburg And The United States' War On Incitement Abroad: Defending A Double Standard, Lyrissa Barnett Lidsky

UF Law Faculty Publications

While it is perfectly legitimate for the United States to attempt to persuade foreign citizens and media not to engage in advocacy of violent acts, the administration's rhetoric suggests that the United States expects foreign governments to take action against speech that would be protected by the First Amendment in the United States. What explains this apparent hypocrisy? Is this simply another example of the United States touting democracy at home while supporting despotism abroad? Or is the Brandenburg incitement standard so socially and culturally contingent that it is not appropriate for export, at least to the Arab Middle East? …


Katz, Kyllo, And Technology: Virtual Fourth Amendment Protection In The Twenty-First Century, Tracey Maclin Jan 2002

Katz, Kyllo, And Technology: Virtual Fourth Amendment Protection In The Twenty-First Century, Tracey Maclin

UF Law Faculty Publications

No abstract provided.


Environmental Damages And Crimes, Jeffry S. Wade Jan 2002

Environmental Damages And Crimes, Jeffry S. Wade

UF Law Faculty Publications

In the effort to achieve environmental goals, policymakers have a number of tools available, including environmental and urban planning, regulatory and permitting programs, various types of incentives, purchasing programs, monitoring requirements, and the establishment of administrative, civil, and criminal sanctions. The applicability and effectiveness of these tools are of course dependent on the particular cultural, economic, and governmental context.

Though criminal enforcement of environmental laws is sometimes perceived as a reactive measure, representing the failure of other approaches, it can serve an important function in deterring environmental abuses; promoting respect for environmental policies; sanctioning persons who violate the law; and …


The Politics Of Research Access To Federal Court Data, Lynn M. Lopucki Jan 2002

The Politics Of Research Access To Federal Court Data, Lynn M. Lopucki

UF Law Faculty Publications

This 11-page paper argues that the problems of empirical researchers in accessing federal court data are principally political, not technological or economic. The technological advances of the past twenty years - computerization of court records and internet access through PACER - have been offset almost entirely by political restrictions on data access. Additional restrictions, ostensibly to protect privacy, now threaten to reduce access further. The data access problem discourages research that might produce results critical of the judges or the functioning of the legal process. The problem thus restricts public access to critical evidence of the courts' failures and limits …