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2009

University of Florida Levin College of Law

Articles 1 - 30 of 49

Full-Text Articles in Law

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 Nov 2009

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 ...


National Security Policy And Ratification Of The Comprehensive Test Ban Treaty, Winston P. Nagan, Erin K. Slemmens Oct 2009

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(CTBT), lingering doubts (about the effectiveness of the international treaty) and partisan politics (founded upon outdated ideologies of national sovereignty) may again foreclose the opportunity for the United States to lead a just and thorough regime of international arms control.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 ...


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 Oct 2009

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 ...


A Sociological Approach To Misappropriation, Elizabeth A. Rowe Oct 2009

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 Oct 2009

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 ...


Sexual Politics And Social Change, Darren Lenard Hutchinson Jul 2009

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 ...


Modernizing Water Law: The Example Of Florida, Christine A. Klein, Mary Jane Angelo, Richard Hamann Jul 2009

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 comprehensive, one through ...


Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee May 2009

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 ...


Find It Fast And Free: An Update On Florida And Federal Research On The Internet, Patricia Morgan Apr 2009

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 Apr 2009

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.


Foreword - A Dedication To Barbara Bennett Woodhouse, Nancy E. Dowd Apr 2009

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 ...


The Gary Dinners And The Meaning Of Concerted Action, William H. Page Apr 2009

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 ...


A Malthusian Analysis Of The So-Called Dynasty Trust, William J. Turnier, Jeffrey L. Harrison Apr 2009

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 ...


The Environmental Deficit: Applying Lessons From The Economic Recession, Christine Klein Mar 2009

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

Christine A. Klein

In 2007, the nation entered a financial downturn unprecedented since the Great Depression of the 1930s. A period of national introspection followed, including memorable moments such as Federal Chairman Alan Greenspan’s gut-wrenching admission that his “whole intellectual edifice” had collapsed during the summer of 2007. Although prescriptions for financial rescue varied widely in the details, a surprisingly-broad consensus began to emerge as to the underlying pathology of the crisis. This Essay focuses on three underlying errors: rejecting rules through deregulation, trivializing risk through overly-optimistic analyses, and recklessly borrowing and lending money. Those powerful lessons, accepted by a stunned nation ...


Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe Mar 2009

Contributory Negligence, Technology, And Trade Secrets, Elizabeth A. Rowe

Elizabeth A Rowe

In tort law, the doctrine of contributory negligence captures conduct by the plaintiff which falls below the standard to which he should conform for his own protection. Whether one has been contributorily negligent is determined by an objective standard of reasonableness under the circumstances. This Article, for the first time, applies these contributory negligence principles to trade secret law. It draws upon this doctrine to frame and analyze a problem posed by modern technology. The very technological tools in use today that increase the efficiency with which companies do business create challenges for trade secret protection. They make trade secrets ...


A Sociological Approach To Misappropriation, Elizabeth A. Rowe Feb 2009

A Sociological Approach To Misappropriation, Elizabeth A. Rowe

Elizabeth A Rowe

This paper is grounded on the premise that sociological analysis can be of great benefit to trade secret law. More specifically, a sociological approach can improve our understanding of the social factors involved in the complex interplay between legal doctrine and compliance. As the first article to apply sociological analysis to trade secret law, this paper uses a group which constitutes the largest segment of the workforce, namely, Generation X and Generation Y (collectively referred to and coined in the Article as “New Generation Employees”) as a case study for analyzing how values and social norms influence compliance with trade ...


From Downes V. Bidwell To Boumediene V. Bush: "The Constitution Follows The Flag ... But It [Still] Doesn't Quite Catch Up With It", Pedro A. Malavet Jan 2009

From Downes V. Bidwell To Boumediene V. Bush: "The Constitution Follows The Flag ... But It [Still] Doesn't Quite Catch Up With It", Pedro A. Malavet

Pedro A. Malavet

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Indeed, the court was unanimous that the plurality opinion of Justice Edward Douglass White in Downes is still the dominant interpretation of the Constitution’s Territorial Clause, abandoning the rule set forth in Dred Scott v. Sanford. This article provides historical context and ...


Racial Exhaustion, Darren Lenard Hutchinson Jan 2009

Racial Exhaustion, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme ...


Measuring The Value Of Collegiality Among Law Professors, Michael L. Seigel, Kathi Miner-Rubino Jan 2009

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 ...


The Future Of International Antitrust And Improving Antitrust Agency Capacity, D. Daniel Sokol Jan 2009

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 ...


Insider Trading In Congress: The Need For Regulation, Matthew Barbabella, Daniel Cohen, Alex Kardon, Peter Molk Jan 2009

Insider Trading In Congress: The Need For Regulation, Matthew Barbabella, Daniel Cohen, Alex Kardon, Peter Molk

UF Law Faculty Publications

Is regulation of Congressional insider trading desirable? We intend to use the STOCK Act (H.R. 682) as a springboard for approaching the need for Congressional insider trading regulation from a slightly more academic perspective. First, we describe the STOCK Act by placing it in recent historical context. Understanding the motivation to reform Congressional ethics that existed earlier this decade is crucial to evaluating the STOCK Act and its prospects for eventual passage by Congress. Second, we review the body of insider trading law that already operates to restrain corporate insiders and others from making some trades. The most important ...


Happiness, Efficiency, And The Promise Of Decisional Equity: From Outcome To Process, Jeffrey L. Harrison Jan 2009

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.


Race, Identity, And Professional Responsibility: Why Legal Services Organizations Need African American Staff Attorneys, Shani M. King Jan 2009

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 ...


Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November Jan 2009

Enhanced Water Quality Protection In Florida: An Analysis Of The Regulatory And Practical Significance Of An Outstanding Florida Water Designation, Thomas T. Ankersen, Richard Hamann, Rachel King, Megan Wegerif, John November

UF Law Faculty Publications

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on ...


What Do We Owe Future Generations?, Neil H. Buchanan Jan 2009

What Do We Owe Future Generations?, Neil H. Buchanan

UF Law Faculty Publications

In the United States, it is common for legal scholars, economists, politicians and others to claim that we are selfishly harming "our children and grandchildren" by (among many other things) running large government budget deficits. This article first asks two broad questions: (1) Do we owe future generations anything at all as a philosophical matter? and (2) If we do owe something to future generations, how should we balance their interests against our own? The short answers are "Probably" and "We really are not sure." Finding only general answers to these general questions, I then look specifically at U.S ...


Wal-Mart In The Garden District: Does The Arbitrary And Capricious Standard Of Review In Nepa Cases Undermine Citizen Participation?, Dawn E. Jourdan, Kevin Gifford Jan 2009

Wal-Mart In The Garden District: Does The Arbitrary And Capricious Standard Of Review In Nepa Cases Undermine Citizen Participation?, Dawn E. Jourdan, Kevin Gifford

UF Law Faculty Publications

The National Environmental Policy Act (NEPA), enacted in 1969, requires that agencies of the U.S. government or those seeking to use federal funds to construct projects study the environmental and social impacts of said projects. Under the provisions of NEPA, a first-level review must be conducted for all projects not otherwise exempted. If the entity conducting the review deems that the project will result in a significant impact on humans or the environment, an environmental impact statement (EIS) must be prepared. The decision about whether or not to prepare an EIS can be controversial due to the fact that ...


Measuring Compliance With Compulsory Licensing Remedies In The American Microsoft Case, William H. Page, Seldon J. Childers Jan 2009

Measuring Compliance With Compulsory Licensing Remedies In The American Microsoft Case, William H. Page, Seldon J. Childers

UF Law Faculty Publications

Section III.E of the final judgments in the American Microsoft case requires Microsoft to make available to software developers certain communications protocols that Windows client operating systems use to interoperate with Microsoft's server operating systems. This provision has been by far the most difficult and costly to implement, primarily because of questions about the quality of Microsoft's documentation of the protocols. The plaintiffs' technical experts, in testing the documentation, have found numerous issues, which they have asked Microsoft to resolve. Because of accumulation of unresolved issues, the parties agreed in 2006 to extend Section III.E for ...


Competition Policy And Comparative Corporate Governance Of State-Owned Enterprises, D. Daniel Sokol Jan 2009

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 Jan 2009

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 ...


The Environmental Deficit: Applying Lessons From The Economic Recession, Christine A. Klein Jan 2009

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 ...