Law Commons^™

October 2014 Newsletter

Ergo

No abstract provided.

Ftc V. Lundbeck: Is Anything In Antitrust Obvious, Like, Ever?, Chris Sagers, Richard M. Brunell

Law Faculty Articles and Essays

In FTC v. Lundbeck, the Eighth Circuit affirmed a bench verdict finding a merger to monopoly, followed by a 1400% price increase, not only legal, but effectively not even subject to antitrust. The result followed from the district court's view that peculiarities in the market for hospital-administered drugs rendered it essentially immune from price competition. That being the case, the court found that even products very plainly substitutable on any traditional "functional interchangeability" analysis are not in the same "relevant market" for purposes of rules governing horizontal mergers. We think the court's analysis was incorrect for a number of …

The Many Texts Of The Law, Michael Henry Davis, Dana Neacsu

Law Faculty Articles and Essays

This paper contends that even as jurists invoke the official canonic version of the legal text, it is in danger of being replaced for the jurist, as well as for the lay person, if it has not been substituted already, by some apocryphal, inauthentic or casual text. We argue that in addition to the approximate nature of legal knowledge, the overuse of overedited and perverted casebooks, as well as the distribution of legal information among imperfect sources – some official but partial, others inauthentic but highly accessible, and a few reliable but highly unaffordable commercial sources – are largely responsible …

Invisible No More: Domestic Workers Organizing In Massachusetts And Beyond, Natalicia Tracy, Tim Sieber, Susan Moir Scd

Labor Studies Faculty Publication Series

Domestic workers across the country are making it clear that, even in a difficult political environment, it is possible to make gains for low-wage workers. For the first time in many, many decades, domestic workers are finding ways to win. They are creat
ing policy change that will improve the lives of hundreds of thousands of workers in tangible and substantial ways. The 2014 Massachusetts Domestic Workers’ Bill of Rights is the most expansive codification of rights for this long-overlooked part of the labor force ever to be enacted. In one sense, there is nothing new about domestic workers organizing …

The Oecd’S Flawed And Dated Approach To Computer Servers Creating Permanent Establishments, Monica Gianni

UF Law Faculty Publications

As the digital economy changes the way that we do business, tax laws have been challenged to adapt appropriately to this nontraditional business method. International tax rules were developed in a different technological era. To accommodate electronic commerce, existing tax rules either have to be applied to electronic-commerce transactions, or new rules have to be developed. The Organisation for Economic Co-operation and Development (OECD) has taken the lead in studying and recommending appropriate international taxation rules for electronic commerce.

This Article focuses on the original central tax issue that the OECD considered—jurisdiction to tax income from electronic commerce based on …

Rights In Recession: Toward Administrative Antidiscrimination Law, Stephanie Bornstein

UF Law Faculty Publications

This Article documents how, over the past six years and coinciding with the “Great Recession of 2008,” both public and private antidiscrimination enforcement mechanisms have become increasingly constrained, such that the ability to enforce the mandate of Title VII of the Civil Rights Act of 1964 - the main federal law prohibiting employment discrimination - may be facing a crisis point. While enforcement mechanisms for federal antidiscrimination law have long left room for improvement, recent developments in the economy, due to the 2008 recession, and in federal case law, due to a series of procedural decisions by the Roberts Court, …

Reconciling Tax Law And Securities Regulation, Omri Y. Marian

UF Law Faculty Publications

Issuers in registered securities offerings must disclose the expected tax consequences to investors investing in the offered securities (“nonfinancial tax disclosure”). This Article advances three arguments regarding nonfinancial tax disclosures. First, nonfinancial tax disclosure practice, as the Securities and Exchange Commission (the SEC) has sanctioned it, does not fulfill its intended regulatory purposes. Currently, nonfinancial tax disclosures provide irrelevant information, sometimes fail to provide material information, create unnecessary transaction costs, and divert valuable administrative resources to the enforcement of largely-meaningless requirements. Second, the practical reason for this failure is the SEC and tax practitioners’ unsuccessful attempt to address investors’ heterogeneous …

Faut-Il Obéir À La Loi ? – Les Pensées Politiques Des Femmes Dans La Littérature Épistolaire Et Les Mémoires Choisis À L’Époque De La Révolution Française, Justyna Czader

Open Access Theses

L'écriture est un témoin qui est difficilement corrompu-Montesquieu, L'esprit des lois. Mémoires and lettres de prisons take us to places we haven't been: prisons in bloody revolutionary Paris and the deadly Place de la Concorde. Women with different social backgrounds fought for their rights denied officially by the revolutionary authorities. They fought back was through plays, mémoires or letters. According to Philippe Lejeune, since the 18th century autobiography has become a phenomenon of civilization. I argue that the lettres de prison present not only a form of epistolary communication, but also as many personal testimonies, recollections of events and emotions …

Constitutional Law—Arkansas’S Current Procedural Rulemaking Conundrum: Attempting To Quell The Political Discord, Sevawn Foster

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Shooting Blanks: Smart Gun Mandates And Their Concomitant Constitutional, Regulatory, Public Policy, And Practical Issues, William F. Godbold Iv

University of Arkansas at Little Rock Law Review

No abstract provided.

Dangers In De Facto Parenthood, Jeffrey A. Parness

University of Arkansas at Little Rock Law Review

No abstract provided.

Sweeping Down The Plain: A Modern Rule For Direct Review In Oklahoma Criminal Appeals, Bryan Lester Dupler

The Journal of Appellate Practice and Process

No abstract provided.

The Maine Idea, Nancy Bellhouse May

The Journal of Appellate Practice and Process

No abstract provided.

Extended Vacancies, Crushing Caseloads, And Emergency Panels In The Federal Courts Of Appeals, Andrew L. Adler

The Journal of Appellate Practice and Process

No abstract provided.

A Tribute To Vincent L. Mckusick, 1921—2014, Derek P. Langhauser

The Journal of Appellate Practice and Process

No abstract provided.

Conveying Titles Clearly: Thoughts On The Fifth Edition Of The Alwd Guide To Legal Citation, Stephen Paskey

The Journal of Appellate Practice and Process

No abstract provided.

The (Un?)Constitutionality Of Compelling Non-Immunized Testimony In Deceptive Trade Practices Investigations Conducted By The Attorney General Of The State Of Arkansas, Terrence Cain

University of Arkansas at Little Rock Law Review

No abstract provided.

Mercenaries, Myrmidons, And Missionaries, Robert Bejesky

University of Arkansas at Little Rock Law Review

No abstract provided.

Criminal Law—Human Trafficking—Arkansas’S Human Trafficking Laws: Steps In The Right Direction Or A False Sense Of Accomplishment?, Mary Ward

University of Arkansas at Little Rock Law Review

No abstract provided.

William H. Bowen: A Tribute, Lynn Foster, Joel E. Anderson, Byron M. Eiseman, John Gill, Chuck Goldner, Kenneth S. Gould, Charles E. Hathaway, James L."Skip" Rutherford, Bill Clinton

University of Arkansas at Little Rock Law Review

No abstract provided.

The Demographic Dilemma In Death Qualification Of Capital Jurors, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

The Importance Of Building Fires: Lessons Learned As A Judge On The United States Court Of Appeals For The Armed Forces, James E. Baker

The Journal of Appellate Practice and Process

No abstract provided.

Advocacy From The Human Perspective: Advice For Young Appellate Lawyers, Douglas S. Levine

The Journal of Appellate Practice and Process

No abstract provided.

The Emergence Of Constitutionalism As An Evolutionary Adaptation, Fábio Portela L. Almeida

Cardozo Public Law, Policy & Ethics Journal

The emergence of modern societies is an evolutionary puzzle. Homo sapiens is the only animal species capable of cooperating in large-scale societies consisting of genetically unrelated individuals. From a biological point of view, this feature leads to enormous questions. Social scientists typically assume that human life is lived in large-scale societies as a result of cultural, social and institutional history. In this perspective, social institutions such as law, economy and religion enhance cooperation to higher levels. Gene-culture coevolutionary theories have studied this issue in an integrated framework that accounts for social and biological theories of cooperation. These theoretical approaches have …

Affirmative Action: Between The Oikos And Cosmos Review Essay: Richard Sander & Stuart Taylor, Jr., Mismatch: How Affirmative Action Hurts Students It's Intended To Help And Why Universities Won't Admit It, Harry G. Hutchinson

South Carolina Law Review

No abstract provided.

The Ties That Bind: Reevaluating The Role Of Legal Presumptions Of Paternity, Heather Kolinsky

UF Law Faculty Publications

As Justice Brennan observed in Michael H. v. Gerald D. so many years ago, we must "identify the point at which a tradition becomes firm enough to be relevant to our definition of liberty and the moment at which it becomes too obsolete to be relevant any longer." This Article addresses one such tradition, the legal presumption of paternity, and examines it through the lens of equal protection, the changing roles of fatherhood, and the evolution of marriage.

The concept of who is a parent must change to both satisfy equal protection as well as modern scientific and societal realties. …

Speech Beyond Borders: Extraterritoriality And The First Amendment, Anna Su

Vanderbilt Law Review

Does the First Amendment follow the flag? In Boumediene v. Bush, the Supreme Court categorically rejected the claim that constitutional rights do not apply at all to governmental actions taken against aliens located abroad. Instead, the Court made the application of such rights, the First Amendment presumably included, contingent on "objective factors and practical concerns." In addition, by affirming previous decisions, Boumediene also extended its functional test to cover even U.S. citizens, leaving them in a situation where they might be without any constitutional recourse for violations of their First Amendment rights. But lower courts have found in the recent …

Tales Of Color And Colonialism: Racial Realism And Settler Colonial Theory, Natsu T. Saito

Faculty Publications By Year

More than a half-century after the Civil Rights Era, people of color remain disproportionately impoverished and incarcerated, excluded and vulnerable. Legal remedies rooted in the Constitution’s guarantee of equal protection remain elusive. This article argues that the “racial realism” advocated by the late Professor Derrick Bell compels us to look critically at the purposes served by racial hierarchy. By stepping outside the master narrative’s depiction of the United States as a “nation of immigrants” with opportunity for all, we can recognize it as a settler state, much like Canada, Australia, and New Zealand. It could not exist without the occupation …

Reconnecting The Financial Sector To The Real Economy: A Plan For Action, Edward J. Waitzer, Douglas Sarro

Articles & Book Chapters

Informational asymmetries, misaligned incentives, and artificially elongated chains of intermediation have created a disconnect between the financial sector and the real economy that is detrimental to the public interest. Courts and regulators are increasingly intervening to break the cycle. Fiduciary law offers a conceptual framework both for understanding and responding to this trend. This article argues that the financial sector, rather than waiting for this trend to develop and reacting to new rules in a piecemeal way, should be proactive and shape the way in which the trend develops.

Admit That The Waters Around You Have Grown: Change And Legal Education, Mari J. Matsuda

Indiana Law Journal

Presented as the Addison C. Harris Lecture at Indiana University Maurer School of Law, Bloomington, Indiana, September 25, 2013.