Law Commons^™

Public-Private Co-Enforcement Litigation, Stephanie Bornstein

UF Law Faculty Publications

Civil laws and their implementing regulations are effective at protecting public interests only if they are enforced. A number of federal statutes—including those that prevent discrimination, protect consumers and the environment, and restrain antitrust and securities violations—include “hybrid” enforcement schemes, authorizing both government agencies and private citizens to litigate violations. Existing scholarship details the relative advantages of these separate and parallel public or private enforcement options. Yet scholars have paid little attention to their beneficial overlap. This Article argues that recent restrictions on both halves of hybrid enforcement systems now jeopardize adequate levels of civil public law enforcement, requiring a …

The First Amendment And Speech Urging Suicide: Lessons From The Case Of Michelle Carter And The Need To Expand Brandenburg'S Application, Clay Calvert

UF Law Faculty Publications

This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required …

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Wither Zauderer, Blossom Heightened Scrutiny? How The Supreme Court’S 2018 Rulings In Becerra And Janus Exacerbate Problems With Compelled-Speech Jurisprudence, Clay Calvert

UF Law Faculty Publications

This Article examines how the United States Supreme Court’s 2018 decisions in the First Amendment cases of National Institute of Family & Life Advocates v. Becerra and Janus v. American Federation of State, County, & Municipal Employees, Council 31, muddle an already disorderly compelled-speech doctrine. Specifically, dual five-to-four decisions in Becerra and Janus raise key questions about the level of scrutiny—either a heightened test or a deferential variant of rational basis review—against which statutes compelling expression should be measured. Critically, Becerra illustrates the willingness of the Court’s conservative Justices to narrowly confine the aging compelled-speech test from Zauderer v. …

What Florida's Constitution Revision Commission Can Teach And Learn From Those Of Other States, Mary E. Adkins

UF Law Faculty Publications

The framers of Florida's constitution envisioned a Constitutional Revision Commission with complete freedom and independence - but its brainchild has not been able to keep that promise. In light of not only the public frustration with attempts at constitutional reform, but also of the specific problems identified both in structure and in practice of Florida's CRC, this Article suggests some reforms that could help not only Florida but other state constitution commissions or conventions be more effective and more readily accepted by the public.

The Armed Society And Its Friends: A Reckoning, Charles W. Collier

UF Law Faculty Publications

This Article provides a selective introduction to some of the main social, cultural, historical, and intellectual issues surrounding gun violence and the desultory policy “debates” over gun control in America.

Unregulated gun violence, unrestricted gun violence, unlimited gun violence: these are the grave “new normal” (a term coined in financial economics) on the otherwise pastoral landscape of America. Sociologically speaking, this level of gun violence is no longer considered deviant, such that “special sanctions” would be imposed to prevent it.

Gun violence and the lack of gun control have also been described as “tragic”—a cultural tragedy—and so they are, though …

Pleading Poverty In Federal Court, Andrew Hammond

UF Law Faculty Publications

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. It shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is arbitrary, inefficient, and invasive.

The Article …

Terminology Matters: Dangers Of Superficial Transplantation, Silvia Ferreri, Larry A. Dimatteo

UF Law Faculty Publications

The history of legal transplantations from one legal system to another is as long as law itself. It has numerous edifications and names including reception, borrowing, and influence. Legal transplantations from one legal system to another come at various levels of substance and penetration including the transplantation of a legal tradition (English common law to the United States and the English Commonwealth), transplantation of national law (Turkey's adoption of Swiss Civil Code), transplantation of an area of law (Louisiana's adoption and retention of French sales law), transplantation of a rule or concept (Chinese adoption of principle of good faith), and …

A Knowledge Theory Of Tacit Agreement, Wentong Zheng

UF Law Faculty Publications

A persistent puzzle in antitrust law is whether and when an unlawful agreement could arise from conduct or verbalized communications that fall short of an explicit agreement. While courts have found such tacit agreements to exist in idiosyncratic scenarios, they have failed to articulate a clear and consistent logic for such findings. This Article attempts to fill this gap by proposing a unified theory of tacit agreement. It defines a tacit agreement as an agreement formed by non-explicit communications that enable the alleged coconspirators to have constructive knowledge of one another's conspiratory intent. This approach to tacit agreement is more …

Child Migrants And America’S Evolving Immigration Mission, Shani M. King

UF Law Faculty Publications

This Article explores the many challenges—legal and otherwise—that child migrants face as they attempt to navigate the complex web of courts, laws, and shifting political landscapes to become naturalized United States citizens, while putting these challenges in the context of an immigration system that has long been shaped by politics of exclusion and xenophobia that have shaped immigration law and policy in the United States for over one-hundred years. Such an investigation comes at a time when the issue of immigration in the United States is increasingly complex and contested. As the Trump administration mulls over new prototypes for a …

Discovery Hydraulics, Seth Katsuya Endo

UF Law Faculty Publications

Discovery reforms invariably have unexpected consequences. But the growth of electronically stored information has led to one constant — an ever-increasing pressure on the finite resources of both the judiciary and litigants. Courts, through their discovery rules, direct where that pressure will be channeled. But like any force in a closed system, it must be sent somewhere, ultimately requiring difficult tradeoffs amongst the three mainstay procedural justice norms of accuracy, efficiency, and participation. Discovery Hydraulics explores this phenomenon, cataloging how recently proposed or implemented document discovery reforms affect these norms.

In creating the first purposive taxonomy of recent document discovery …

Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo

UF Law Faculty Publications

This article investigates the values and latent policies, which have shaped the development of Chinese law in the area of the availability of specific performance (SP) as a contractual remedy. The National People’s Congress (Legislature) and Supreme People’s Court in China have addressed the remedial structure of Chinese contract law, namely, the availability of the remedy of SP as opposed to the awarding of damages-only. The law is clear that the remedies of SP and damages are ordinary remedies that a claimant is free to choose between. The question that is confronted in this article is whether in practice the …

Continuity As The Key To Reform Of Section 355, Charlene Luke

UF Law Faculty Publications

There can be little doubt that Internal Revenue Code (Code) section 355 is overly complex; the piecemeal adjustments spanning multiple decades could serve as exemplars of the potential pitfalls of incremental reform. Revisions to section 355 have tended to be under- or over-inclusive because they are reactive to particular deals, yet they leave largely intact older structures that dealt with different deals. The result is a jumble of provisions that fail to implement a coherent, principled approach to the tax treatment of corporate divisions. In Reform of Section 355, Bret Wells urges changing Code section 355 to focus on the …

Comparative Warranty Law: Case Of Planned Obsolescence, Stefan Wrbka, Larry A. Dimatteo

UF Law Faculty Publications

The cause of our present stagnation is that the supply line or arteries furnishing the needs of the country are clogged with obsolete, outworn and outmoded machinery, buildings and commodities of all kinds. These are obstructing the avenues of commerce and industry and are preventing new products from coming through. There is little demand for new goods when people make their old and worn-out things do, by keeping them longer than they should.

Certifying Questions In First Amendment Cases: Free Speech, Statutory Ambiguity, And Definitive Interpretations, Clay Calvert

UF Law Faculty Publications

In the First Amendment-based speech cases of both Minnesota Voters Alliance v. Mansky in 2018 and Expressions Hair Design v. Schneiderman in 2017, Justice Sonia Sotomayor forcefully contended that the United States Supreme Court should have certified questions about statutory meaning to the highest relevant state court. This Article examines certification—its purposes, its pros, and its cons—in cases pivoting on whether ambiguous state statutes violate the First Amendment. Mansky and Expressions Hair Design provide timely analytical springboards. The Article argues that certification carries heightened importance today. That is because the justices now frequently fracture along perceived political lines over when …

Recreational Rights To The Dry Sand Beach In Florida: Property, Custom And Controversy, Alyson C. Flournoy, Thomas T. Ankersen, Sasha Alvarenga

UF Law Faculty Publications

At the close of the 2018 legislative session Florida Governor Rick Scott signed HB 631 into law. Included in the bill, which addressed a number of issues relating to actions for ejectment from real property, was an amendment to the Florida Community Planning Act entitled “Establishment of Recreational Customary Use.” The new statute immediately created a sandstorm of controversy as the media seized on what many in the public perceived to be a land grab over the public’s right to recreate on Florida’s sandy beaches. As it turns out, the story is considerably more nuanced, and neither the advocates on …

Implicit Racial Bias And Students' Fourth Amendment Rights, Jason P. Nance

UF Law Faculty Publications

Tragic acts of school violence such as what occurred in Columbine, Newtown, and, more recently, in Parkland and Santa Fe, provoke intense feelings of anger, fear, sadness, and helplessness. Understandably, in response to these incidents (and for other reasons), many schools have intensified the manner in which they monitor and control students. Some schools rely on combinations of security measures such as metal detectors; surveillance cameras; drug-sniffing dogs; locked and monitored gates; random searches of students’ belongings, lockers, and persons; and law enforcement officers. Not only is there little empirical evidence that these measures actually make schools safer, but overreliance …

The Statutory Public Interest In Closing The Pay Gap, Stephanie Bornstein

UF Law Faculty Publications

This Essay explores the role that the statutory public interest should play in the enforcement of rights under the Equal Pay Act of 1963 (EPA). Current data shows that, even fifty-five years after the enactment of federal law outlawing sex based pay discrimination, the gender pay gap inflicts huge costs on women, their families, and the U.S. economy, echoing the public concerns that led to the statute’s original passage. That Fair Labor Standards Act of 1938 (FLSA) and EPA rights cannot be waived by an employee calls into question two common employer pay-setting practices often excused under federal law: setting …

Radical Aces: Building Resilience And Triggering Structural Change, Nancy E. Dowd

UF Law Faculty Publications

Children’s developmental equality is critical to their opportunity and lifetime success. If we are to dismantle hierarchies among children, we must dismantle barriers placed in their way as well as insure affirmative support so that each child achieves their full developmental potential. The Adverse Childhood Experiences (ACEs) framework identifies factors that create hurdles, not necessarily insurmountable, to children’s development. A higher ACEs number translates into geometrically increased challenges for individual children. Identifying ACEs, if used simply to count obstacles for children, does not contribute to the goal of children’s equality. Indeed, counting ACEs may have the converse effect, if identifying …

Fingerprints: An Impressionistic And Empirical Evaluation Of Richard Posner’S Impact On Contract Law, Jeffrey L. Harrison

UF Law Faculty Publications

Richard Posner’s retirement after 36 years on the federal bench presents an ideal opportunity to reflect on his sometimes controversial career as a scholar and a judge. Since his principal scholarly work, Economic Analysis of Law, has been cited in legal scholarship over 7500 times a good working hypothesis is that his impact on law has been substantial. This article considers his impact on contract law. Two lines of research were conducted: one line explores the impact of Judge Posner’s scholarly writings on judicial opinions; the other line examines the impact of his opinions on other courts.

Antidiscriminatory Algorithms, Stephanie Bornstein

UF Law Faculty Publications

Can algorithms be used to advance equality goals in the workplace? A handful of legal scholars have raised concerns that the use of big data at work may lead to protected class discrimination that could fall outside the reach of current antidiscrimination law. Existing scholarship suggests that, because algorithms are “facially neutral,” they pose no problem of unequal treatment. As a result, algorithmic discrimination cannot be challenged using a disparate treatment theory of liability under Title VII of the Civil Rights Act of 1964 (Title VII). Instead, it presents a problem of unequal outcomes, subject to challenge using Title VII’s …

Institutional Investors As Short Sellers?, Peter Molk, Frank Partnoy

UF Law Faculty Publications

Short selling has the potential to improve the efficiency and fairness of equity markets. Yet institutional investors face both private and regulatory constraints to short selling. We document these obstacles and consider the potential benefits of removing them. We advocate that institutional investors engage in more short selling as part of overall net-long equity strategies, such as a leveraged passive equity index combined with an actively managed short position of a size comparable to the amount of leverage.

Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka

UF Law Faculty Publications

The Parker v. Brown (or “state action”) doctrine and the Eleventh Amendment of the Constitution impose differen limits on antitrust suits challenging anticompetitive state regulation. The Supreme Court has developed these two versions of state sovereign immunity separately, and lower courts usually apply the immunities independently of each another (even in the same cases) without explaining their relationship. Nevertheless, the Court has derived the two immunities from the same principle of sovereign immunity, so it is worth considering why and how they differ, and what the consequences of the differences are for antitrust policy. The state action immunity is based …

Introduction: Early Childhood Symposium - Early Childhood Matters, Nancy E. Dowd, Teresa Drake

UF Law Faculty Publications

Early childhood is a critical time in development when equality can be sustained, or inequality can take root. As a developmental period, it is marked by rapid neurological development, and thus the period from birth to three is a foundation for all future development. In early childhood, children’s critical need is developmental support through nurturing and responsive interactions in everyday activities and routines. Differences commonly emerge linked to the differences in children’s immediate ecologies. As the contributions to this symposium underscore, one of the major impacts on ecologies is income inequality, and in particular, poverty. While it is not the …

Book Review: International Tax Policy: Between Competition And Cooperation, Yariv Brauner

UF Law Faculty Publications

The author reviews International Tax Policy: Between Competition and Cooperation. By Tsilly Dagan. Cambridge Tax Law Series, 2018.

A Requiem For Regulatory Takings: Reclaiming Eminent Domain For Constitutional Property Claims, Danaya C. Wright

UF Law Faculty Publications

For the past forty years, the United States Supreme Court has embraced the doctrine of regulatory takings, despite being unable to provide any coherent and reliable guidance on when a regulation goes so far as to require compensation. But Justice Thomas's admission in Murr v. Wisconsin (2017) that there is no real historical basis for the Court's regulatory takings jurisprudence offers a chance to reconsider the doctrine anew. Looking back to Justice Holmes's prophetic statement in Pennsylvania Coal Co. v. Mahon, that a regulation can go too far and require an exercise of eminent domain to sustain it, I argue …

The Climate Crisis Is A Human Security, Not A National Security, Issue, Maryam Jamshidi

UF Law Faculty Publications

Climate change is one of the first times, in recent memory, where public debate about treating an issue as a matter of “national security” has occurred. Many, including members of the grassroots climate change movement, have called for climate change to be treated as a national security issue. While there are a host of good reasons for treating the climate crisis as a security concern, there are equally good reasons to worry about applying the national security label to climate change, which have largely been absent from public debate. For the first time in the legal literature, this Article articulates …

The Rise Of Business Trusts In Sustainable Neo-Innovative Economies, Lee-Ford Tritt, Ryan Scott Teschner

UF Law Faculty Publications

This Article is organized as follows: Part I provides a basic understanding of business trusts in the United States. Next, Part II explores the differences between business trusts in the United States and those in Singapore. Finally, Part III discusses how historical and cultural influences may have shaped the success—or lack thereof—of the business trust form in Singapore and in the United States.

The Fcc And Profane Language: The Lugubrious Legacy Of A Moral Panic And A Grossly Offensive Definition That Must Be Jettisoned, Clay Calvert

UF Law Faculty Publications

This Article examines the Federal Communications Commission’s (“FCC”) regulation of profane language since 2004. That year is when the FCC, facing a moral panic, radically altered its profanity tack. Unlike obscenity and indecency, profanity—a third content category over which the Commission holds statutory authority—is seldom analyzed.

This Article argues that the FCC’s current definition of profane language not only strips its meaning from its religious roots, but also: (1) is both unconstitutionally vague and overbroad; and (2) violates core First Amendment principles against censoring speech that merely offends. The U.S. Supreme Court’s reinvigorated emphasis on safeguarding offensive expression in cases …

Oh, What A Truism The Tenth Amendment Is: State Sovereignty, Sovereign Immunity, And Individual Liberties, Sharon E. Rush

UF Law Faculty Publications

The Supreme Court under the late Chief Justice Rehnquist and now Chief Justice Roberts takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments, which the Court has infused with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other …