Law Commons^™

Setting The Standard: A Critique Of Bonnie's Competency Standard And The Potential Of Problem-Solving Theory For Self-Representation At Trial, E. Lea Johnston

UF Law Faculty Publications

In Indiana v. Edwards, the U.S. Supreme Court held that the Sixth Amendment permits a trial court to impose a higher competency standard for self-representation than to stand trial. The Court declined to specify the contents of a permissible representational competence standard, but cited with support the construct of adjudicative competence developed by Professor Richard Bonnie. While Bonnie's proposal may provide an appropriate framework for evaluating the competence of represented defendants' decisions, it is at most a starting point for defining the capacities needed for self-representation at trial. This Article begins by exposing three reasons why Bonnie's approach is …

U.S. Immigration Law And The Traditional Nuclear Conception Of Family: Toward A Functional Definition Of Family That Protects Children's Fundamental Human Rights, Shani M. King

UF Law Faculty Publications

Although the paramount purpose of United States immigration law is not to protect the integrity of family, U.S.immigration law does explicitly aim to do so in certain circumstances. The Immigration and Nationality Act (INA) includes family reunification provisions, for example, which allow United States citizens and lawful permanent residents to petition for family members who live in other countries to join them in the United States. Even the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), often described as a draconian statute, technically allows otherwise removable "aliens" to remain in the United States if removal would result in …

National Security Policy And Ratification Of The Comprehensive Test Ban Treaty, Winston P. Nagan, Erin K. Slemmens

UF Law Faculty Publications

While no legal obstacles prevent the U.S. Senate's reconsideration of the Comprehensive Nuclear-Test-Ban Treaty (CTBT), lingering doubts (about the effectiveness of the international treaty) and partisan politics (founded upon outdated ideologies of national sovereignty) may again foreclose the opportunity for the United States to lead a just and thorough regime of international arms control. By closely examining the U.S. Senate's previous rejection (and, by implication, the nation's non-ratification) of the CTBT, we assess the political process that failed to realize the security values now imperative to U.S. national defense. To this appraisal, we join analysis of the contemporary law, policy, …

A Sociological Approach To Misappropriation, Elizabeth A. Rowe

UF Law Faculty Publications

Social science and law are not strangers. In analyzing legal issues, scholars have often utilized theoretical or methodological approaches from the social sciences. While economics appears to be the prevalent branch of social science in legal analysis, sociology, with its focus on group (as opposed to individual) behavior, can be a suitable approach where, for instance, the application and interpretation of the law is based largely on contextual factors and on behavior. Trade secret law is one of these areas. Public policy arguments and value judgments loom large in these cases. Trade secret law regulates commercial ethics and morality, and …

Health And Reproductive Rights In The Protocol To The African Charter: Competing Influences And Unsettling Questions, Rachel Rebouché

UF Law Faculty Publications

In 2005, the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (the Protocol) came into force. Since that time, the Protocol has received scant attention in legal scholarship. Where the Protocol has been mentioned, by and large it has received praise as a major step forward for women's rights on the continent. Much of that praise is merited. The Protocol includes broad rights to non-discrimination, equality, and dignity, and it addresses a variety of areas such as labor and employment, marriage and the family, the legal system, the political process and …

Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann

UF Law Faculty Publications

This Article takes a national view of the modernization of water law. Using Florida as an example, it identifies some of the most important and controversial challenges faced by states. Part II provides an overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in a piecemeal fashion, resulting in a patchwork of rules -- common law and statutory, old and new. In rare cases -- including that of Florida -- the process may be more …

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently, GLBT rights …

Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee

UF Law Faculty Publications

Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party's unilateral decision or both parties' mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …

Find It Fast And Free: An Update On Florida And Federal Research On The Internet, Patricia Morgan

UF Law Faculty Publications

No abstract provided.

Awareness And Ethics In Dispute Resolution And Law: Why Mindfulness Tends To Foster Ethical Behavior, Leonard L. Riskin

UF Law Faculty Publications

This paper is an extended version of a luncheon presentation given at the Symposium, Ethics in the Expanding World of ADR: Considerations, Conundrums, and Conflicts, sponsored by South Texas College of Law in Houston, Texas, on Nov. 2, 2007.

The Gary Dinners And The Meaning Of Concerted Action, William H. Page

UF Law Faculty Publications

Between 1907 and 1911, executives of American steel manufacturers gathered in a series of social events and meetings that became known as the Gary dinners. Their founder, Judge Elbert H. Gary, chairman of the board of the United States Steel Corporation (U.S. Steel), believed the dinners were a lawful way to stabilize steel prices by enabling manufacturers to tell each other "frankly and freely what they were doing, how much business they were doing, what prices they were charging, how much wages they were paying their men, and... all information concerning their business." The government agreed that the dinners stabilized …

A Malthusian Analysis Of The So-Called Dynasty Trust, William J. Turnier, Jeffrey L. Harrison

UF Law Faculty Publications

Select financial institutions and members of the Bar have seized upon the presence of the limited exemption from the generation skipping transfer tax provided under the Internal Revenue Code to promote so-called dynasty trusts as a means whereby individuals can build dynastic wealth for a family forever free from transfer taxes. To realize such benefits, state law that does not impose the Rule Against Perpetuities must govern the trust. The promise of dynastic wealth is unlikely to be realized due to several factors. Administrative and tax costs are likely to reduce the yield on such trusts to a level where …

Foreword - A Dedication To Barbara Bennett Woodhouse, Nancy E. Dowd

UF Law Faculty Publications

Families and family law are at the cutting edge of social policy. As we navigate through difficult times, we are reminded not only of the importance of families, but also of their vulnerability. The challenge for family law and policy is to remain responsive and relevant. This requires that we confront the realities of families, their needs and issues. We live in times of enormous diversity in family forms. That reality is frightening and worrisome to some, but reminds us that it is how families function, rather than what they look like, that is most important. Embracing function over form …

Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan

UF Law Faculty Publications

As part of the George Washington Law Review's symposium "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century," participants discussed the nature of intergenerational obligations as they relate to fiscal policy. The panelists reached consensus that intergenerational justice is not an appropriate lens through which to analyze fiscal issues, because there is no obvious starting point from which to build a moral consensus about whether current generations owe anything at all to future generations, much less how to quantify any such obligation. In addition, even pessimistic forecasts indicate that future generations will …

Technology And Intellectual Property: New Rules For An Old Game?, Elizabeth A. Rowe

UF Law Faculty Publications

This foreword to the first issue of 2009 for the Journal of Technology Law and Policy discusses the questions presented by the merger of technology and intellectual property and considers how best the two areas should co-exist.

Measuring The Value Of Collegiality Among Law Professors, Michael L. Seigel, Kathi Miner-Rubino

UF Law Faculty Publications

This article is the last in a trilogy addressing the issue of collegiality among law In the first piece, titled On Collegiality, author Seigel defined professors' "collegiality" and suggested that most law schools have at least one, if not two or three, "affirmatively uncollegial" members of their faculty. Seigel posited that these individuals tend to interfere with the ideal functioning of their institutions by negatively affecting the well-being of their peers. Some readers of On Collegiality questioned the legitimacy of Seigel's cost-benefit analysis. Specifically, they commented that some of the factors Seigel used in his analysis could be empirically measured. …

Anonymity In Cyberspace: What Can We Learn From John Doe?, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This Article examines the evolution of the law governing libel suits against anonymous "John Doe" defendants based on Internet speech. Between 1999 and 2009, courts crafted new First Amendment doctrines to protect Internet speakers from having their anonymity automatically stripped away upon the filing of a libel action. Courts also adapted existing First Amendment protections for hyperbole, satire, and other nonfactual speech to protect the distinctive discourse of Internet message boards. Despite these positive developments, the current state of the law is unsatisfactory. Because the scope of protection for anonymous Internet speech varies greatly by jurisdiction, resourceful plaintiffs can make …

Happiness, Efficiency, And The Promise Of Decisional Equity: From Outcome To Process, Jeffrey L. Harrison

UF Law Faculty Publications

This article explains why outcome-oriented goals like efficiency, happiness, or well-being are ultimately of limited use as goals for law. Part II places happiness research in the context of past efforts to assess efficiency standards. Part III outlines the schism between efficiency and happiness and examines whether they can be reconciled. Part IV discusses the problems of relying on direct measures of happiness. The concept of decisional equity is described and examined in Part V.

Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, James E. Coleman Jr., Angela Davis, Michael Gerhardt, K. C. Johnson, Lyrissa Barnett Lidsky, Howard M. Wasserman

UF Law Faculty Publications

This panel took place at the 2008 Annual Meeting of the Southeastern Association of Law Schools (SEALS) in July 2008 in West Palm Beach, Florida. The transcript has been edited for grammar, punctuation and writing style, as well as for limited content changes.

Limiting Anticompetitive Government Interventions That Benefit Special Interests, D. Daniel Sokol

UF Law Faculty Publications

When government regulates, it may either intentionally or unintentionally generate restraints that reduce competition ("public restraints"). Public restraints allow a business to cloak its action in government authority and to immunize it from antitrust regulation. Private businesses may misuse the government's grant of antitrust immunity to facilitate behavior that benefits businesses at consumers' expense. One way is by obtaining government grants of immunity from antitrust scrutiny. A recent series of Supreme Court decisions has made this situation worse by limiting the reach of antitrust law in favor of sector regulation. This is true even though the Supreme Court refers to …

Competition Policy And Comparative Corporate Governance Of State-Owned Enterprises, D. Daniel Sokol

UF Law Faculty Publications

The legal origins literature overlooks a key area of corporate governance-the governance of state-owned enterprises ("SOEs"). There are key theoretical differences between SOEs and publicly-traded corporations. In comparing the differences of both internal and external controls of SOEs, none of the existing legal origins allow for effective corporate governance monitoring. Because of the difficulties of undertaking a cross-country quantitative review of the governance of SOEs, this Article examines, through a series of case studies, SOE governance issues among postal providers. The examination of postal firms supports the larger theoretical claim about the weaknesses of SOE governance across legal origins. In …

Embargo Or Blockade? The Legal And Moral Dimensions Of The U.S. Economic Sanctions On Cuba, Berta E. Hernández-Truyol

UF Law Faculty Publications

The almost fifty-year old U.S. economic policy towards Cuba entails the embargo that is the topic of this essay. Indeed, not even on the naming of the economic policy can the camps agree. To those antagonistic to the revolution the policy is an embargo -- an economic sanction constituting a legitimate government action that legally restricts the flow of goods, services and capital to the island in order to try to influence the Castro regime into changing its undemocratic ways. Such lawful restrictions simply signal justifiable disapproval of another country's policy with the goal of changing the state's behavior that …

The Future Of International Antitrust And Improving Antitrust Agency Capacity, D. Daniel Sokol

UF Law Faculty Publications

One of the key issues in international antitrust has been how to make antitrust more effective around the world. Most antitrust laws have been adopted or significantly modified since 1990. A number of key jurisdictions are either fairly new to antitrust altogether or to an antitrust regime that effectively employs the latest in economic thinking and the legal tools necessary to promote competition. Jurisdictions that have made antitrust a new and important cornerstone to economic policy include Brazil, Russia, India, and China. Because of the stakes involved in the ability of antitrust to foster economic development and to prevent misguided …

The Environmental Deficit: Applying Lessons From The Economic Recession, Christine A. Klein

UF Law Faculty Publications

In 2007, the nation entered its greatest financial downturn since the Great Depression of the 1930s. What followed was a period of national introspection. Although prescriptions for financial rescue varied widely in the details, a surprisingly broad consensus emerged as to the underlying pathology of the crisis. This Article explores three principal contributing factors and the lessons associated with each that make up this pathology. These factors include: rejecting rules through deregulation, trivializing risk through overly optimistic analyses, and overconsumption supported by reckless borrowing and lending practices.

The powerful lessons from this pathology, considered by a stunned nation in the …

The Madoff Scandal, Market Regulatory Failure And The Business Education Of Lawyers, Robert J. Rhee

UF Law Faculty Publications

This essay suggests that a deficiency in legal education is a contributing cause of the regulatory failure. The most scandalous malfeasance of this new era, the Madoff Ponzi scheme, evinces the failure of improperly trained lawyers and regulators. It also calls into question whether the prevailing regulatory philosophy of disclosure is sufficient in a complex market. This essay answers an important question underlying these considerations: What can legal education do to better train business lawyers and regulators for a market that is becoming more complex. One answer, it suggests, is a simple one: law schools should teach a little more …

Whither Communism: A Comparative Perspective On Constitutionalism In A Postsocialist Cuba, Jon L. Mills, Daniel Ryan Koslosky

UF Law Faculty Publications

For over fifty years, Cuba has been a source of high-spirited political and policy debates. Its history and geostrategic position make it unique in American diplomatic and socioeconomic history. Interest in the island has not waned with the collapse of Communism in Eastern Europe and the former Soviet Union. On the contrary, Raul Castro’s assumption of Government has led many to begin asking how and under what circumstances political liberalization and economic transformation may occur in Cuba. This article examines the possible constitutional outcomes of a Cuba transition and introduces a framework for analyzing both Cuban economic reforms and US …

Recent Developments In Federal Income Taxation: The Year 2008, Martin J. Mcmahon Jr., Ira B. Shepard, Daniel L. Simmons

UF Law Faculty Publications

This article discusses, and provides context to understand the significance of, the most important judicial decisions and administrative rulings and regulations promulgated by the Internal Revenue Service and Treasury Department during 2008 - and sometimes a little farther back in time if the authors find the item particularly humorous or outrageous. Most Treasury Regulations, however, are so complex that they cannot be discussed in detail and, anyway, only a devout masochist would read them all the way through; just the basic topic and fundamental principles are highlighted. Amendments to the Internal Revenue Code generally are discussed to the extent that …

Challenging Monohumanism: An Argument For Changing The Way We Think About Intercountry Adoption, Shani M. King

UF Law Faculty Publications

The Convention on the Rights of the Child' (CRC) provides a legal framework that establishes a child's right to be raised in the context of her family and her culture. We regularly violate this most fundamental right of children because we fail to come to terms with our imperialist orientation toward the world. This failure has been caused, in part, by how we have constructed our way of thinking about intercountry adoption. We now have a conception of intercountry adoption that I refer to in this Article as MonoHumanism. In the context of intercountry adoption, MonoHumanism means that children …

Race, Identity, And Professional Responsibility: Why Legal Services Organizations Need African American Staff Attorneys, Shani M. King

UF Law Faculty Publications

Given the fundamental importance of the attorney-client relationship in securing favorable outcomes for clients, legal services organizations that serve large populations of African Americans should employ African American staff attorneys because: (1) African American lawyers and clients share a group identity that makes it more likely that a black attorney will be able to gain a black client's trust; (2) black attorneys communicate more effectively with black clients; and (3) the perception of a judicial system that is unfair and racist is likely to encourage black clients to trust black lawyers more than white lawyers, who are more likely to …

Stumbling Toward Success: A Story Of Adaptive Law And Ecological Resilience, Mary Jane Angelo

UF Law Faculty Publications

For decades, scientific and legal scholars alike have promoted the concept of "adaptive management" as a necessary approach to meaningful environmental management, restoration, and regulation. Unfortunately, adaptive management success stories are few and far between. The Lake Apopka Restoration Project provides a real-world illustration of adaptive management at work. This article uses adaptive management theory to explore mechanisms to make environmental law better able to address the uncertainties and changing nature of natural systems to restore and protect ecological resilience.