Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- First Amendment (7)
- Antitrust and Trade Regulation (4)
- Comparative and Foreign Law (4)
- Constitutional Law (3)
- Criminal Law (3)
-
- Estates and Trusts (3)
- International Law (3)
- Juvenile Law (3)
- Land Use Law (3)
- Tax Law (3)
- Taxation-Transnational (3)
- Business Organizations Law (2)
- Civil Procedure (2)
- Civil Rights and Discrimination (2)
- Contracts (2)
- Environmental Law (2)
- Family Law (2)
- Fourth Amendment (2)
- Human Rights Law (2)
- Immigration Law (2)
- Intellectual Property Law (2)
- Law and Race (2)
- National Security Law (2)
- Commercial Law (1)
- Common Law (1)
- Conflict of Laws (1)
- Consumer Protection Law (1)
- Fourteenth Amendment (1)
- Labor and Employment Law (1)
- Keyword
-
- First Amendment (7)
- Estate planning (3)
- Adoption (2)
- Antitrust (2)
- Compelled speech (2)
-
- Employment (2)
- Equality (2)
- Federalism (2)
- Florida (2)
- Land use (2)
- National Security (2)
- Privacy (2)
- Property rights (2)
- Race (2)
- Regulatory takings (2)
- Tax law (2)
- Title VII (2)
- Trade secrets (2)
- 11th amendment (1)
- ACEs (1)
- Activism (1)
- Acute (1)
- Adverse Childhood Experiences (1)
- Algorithms (1)
- American Express (1)
- Anti-avoidance (1)
- Antitrust law (1)
- Automobile exception (1)
- BEPS (1)
- Beach access (1)
Articles 1 - 30 of 54
Full-Text Articles in Law
Public-Private Co-Enforcement Litigation, Stephanie Bornstein
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
'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
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.
Terminology Matters: Dangers Of Superficial Transplantation, Silvia Ferreri, Larry A. Dimatteo
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 …
The Armed Society And Its Friends: A Reckoning, Charles W. Collier
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 …
Child Migrants And America’S Evolving Immigration Mission, Shani M. King
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 …
Pleading Poverty In Federal Court, Andrew Hammond
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 …
A Knowledge Theory Of Tacit Agreement, Wentong Zheng
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 …
Discovery Hydraulics, Seth Katsuya Endo
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 …
Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin
Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin
UF Law Faculty Publications
This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …
Parker V. Brown, The Eleventh Amendment, And Anticompetitive State Regulation, William H. Page, John E. Lopatka
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 …
Can Gilti + Beat = Globe?, Mindy Herzfeld
Can Gilti + Beat = Globe?, Mindy Herzfeld
UF Law Faculty Publications
The OECD is moving forward with consideration of a minimum tax as part of its solution to taxation of the digital economy. Part of a template for such a minimum tax may be the version enacted by the United States (US) in 2017 as an expansion of its Controlled Foreign Corporation (CFC) regime, known as Global Intangible Low Taxed Income (GILTI). But the OECD version will undoubtedly be different from the US iteration. It’s likely that it would also include some aspects of a minimum tax being proposed by other OECD members such as Germany and France, namely a tax …
Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness, E. Lea Johnston
Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness, E. Lea Johnston
UF Law Faculty Publications
Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as …
Ohio V. American Express: Misunderstanding Two-Sided Platforms, The Charge Card 'Market,' And The Need For Procompetitive Justifications, Jeffrey L. Harrison
Ohio V. American Express: Misunderstanding Two-Sided Platforms, The Charge Card 'Market,' And The Need For Procompetitive Justifications, Jeffrey L. Harrison
UF Law Faculty Publications
In Ohio v. American Express Co., the United States Supreme Court had its first knowing encounter with what it incorrectly viewed as a two-sided platform in the context of American Express’ Non Disclosure Provisions (NDP). Under these provisions merchants accepting the American Express card for payment are not permitted to inform consumers that other cards charge merchants less for their use and that this could be reflected in the final price paid. The opinion includes poor reasoning, a lack of attention to precedent, and bad news for those who thought antitrust law was due for a revival. Yet, and perhaps …
Tearing Down The Wall: How Transfer-On-Death Real-Estate Deeds Challenge The Inter Vivos/Testamentary Divide, Danaya C. Wright, Stephanie Emrick
Tearing Down The Wall: How Transfer-On-Death Real-Estate Deeds Challenge The Inter Vivos/Testamentary Divide, Danaya C. Wright, Stephanie Emrick
UF Law Faculty Publications
This Article will examine one of the most recent will substitutes, the transfer-on-death (“TOD”) real-estate deed. Nearly half of the states have recognized, through common-law forms or legislation, a mechanism to allow for the transfer of real property on death without using a will, without following the will formalities, and without necessitating probate. This new tool in the estate planner’s toolbox is invaluable: revocable trusts have proven too expensive for decedents of modest means, and wills continue to require formalities that can easily frustrate non-lawyer-drafted estate documents. But the variety of TOD deed rules and mechanisms that the different states …
Is Everything A Full-Blown First Amendment Case After Becerra And Janus? Sorting Out Standards Of Scrutiny And Untangling "Speech As Speech" Cases From Disputes Incidentally Affecting Expression, Clay Calvert
UF Law Faculty Publications
This Article examines the U.S. Supreme Court’s 2018 First Amendment-based decisions in both National Institute of Family and Life Advocates v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. The Article illustrates how the rulings in these right-not-to-speak cases deepen the divide on today’s Court over when a case affecting speech merits heightened First Amendment analysis (be it strict or intermediate scrutiny) and when it only deserves rational basis review as an economic or social regulation. The cases nudge to the breaking point a dangerous game of push-and-pull between the Court’s conservative and liberal justices …
Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo
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 …
Secrets Of The Deep: Defining Privacy Underwater, Annie Brett
Secrets Of The Deep: Defining Privacy Underwater, Annie Brett
UF Law Faculty Publications
The drones are coming, But not just to your neighborhood skies – to the world’s oceans. From recreational robots designed to autonomously follow divers and record video of them to low-cost, remotely operated submersibles that put ocean exploration in the hands of the general public to sophisticated military submersibles able to autonomously gather intelligence throughout the oceans, the underwater drone market is exploding. But unlike on land, this explosion has not been accompanied by similar discussion of privacy concerns. Instead, the ocean’s rapid shift away from an inaccessible operational sanctuary is one that is happening largely silently. And it is …
Continuity As The Key To Reform Of Section 355, Charlene Luke
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 …
Corporate Charter Competition, Lynn M. Lopucki
Corporate Charter Competition, Lynn M. Lopucki
UF Law Faculty Publications
The corporate charter competition has dominated the corporate law literature for four decades. This Article draws on the theoretical and empirical insights from that vast literature to present a systems analysis of the competition. The analysis shows the competition to be a system composed of three subsystems, joined by the internal affairs doctrine. The subsystems are those by which (1) corporations choose incorporation states, (2) states decide what packages to offer, and (3) states and stakeholders choose the courts that interpret and enforce corporate law. The analysis suggests that the standard account of charter competition should be revised in five …
Reinvigorating Criminal Antitrust?, D. Daniel Sokol
Reinvigorating Criminal Antitrust?, D. Daniel Sokol
UF Law Faculty Publications
Contemporary rhetoric surrounding antitrust in an age of populism has potential implications with regard to criminal antitrust enforcement. In areas such as resale price maintenance, monopolization, and Robinson-Patman violations, antitrust criminalization remains the law on the books. Antitrust populists and traditional antitrust thinkers who embrace a singular economic goal of antitrust push to enforce antitrust law that is already “on the books.” A natural extension of enforcement by the antitrust populists would be to advocate the use of criminal sanctions, outside of collusion, for various antitrust violations which are “on the books” but have not been used in over a …
Comparative Warranty Law: Case Of Planned Obsolescence, Stefan Wrbka, Larry A. Dimatteo
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.
Changing Faces: Morphed Child Pornography Images And The First Amendment, Stacey B. Steinberg
Changing Faces: Morphed Child Pornography Images And The First Amendment, Stacey B. Steinberg
UF Law Faculty Publications
Technology has changed the face of child pornography. The Supreme Court has held that child pornography harms a child both in the creation of the image and the circulation of the image, and thus has ruled that the possession and distribution of child pornography falls outside the realm of First Amendment protections. However, today’s images depicting child pornography do not always depict an actual child engaged in a pornographic act. Instead, some images depicting child pornography are “morphed images.”
Morphed child pornography is created when the innocent image of a child is combined with a separate, sexually explicit image, usually …
Legal And Clinical Issues Regarding The Pro Se Defendant: Guidance For Practitioners And Policy Makers, Christina L. Patton, Lea Johnston, Colleen M. Lillard, Michael J. Vitacco
Legal And Clinical Issues Regarding The Pro Se Defendant: Guidance For Practitioners And Policy Makers, Christina L. Patton, Lea Johnston, Colleen M. Lillard, Michael J. Vitacco
UF Law Faculty Publications
Defendants who attempt to represent themselves, or proceed pro se, make up less than 1% of felony cases. However, when the issue of competency to proceed pro se arises, it can present interesting questions and challenges not only for the defendant, but also for others involved with the trial process. In Indiana v. Edwards (2008), the U.S. Supreme Court permitted states to impose a higher standard of competency for defendants who wish to proceed to trial without an attorney than for defendants who stand trial with representation. States have responded by adopting a patchwork of different, and often vague, …
Recreational Rights To The Dry Sand Beach In Florida: Property, Custom And Controversy, Alyson C. Flournoy, Thomas T. Ankersen, Sasha Alvarenga
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 …
A Statutory National Security President, Amy L. Stein
A Statutory National Security President, Amy L. Stein
UF Law Faculty Publications
Not all presidential power to address national security threats stems from the Constitution. Some presidential national security powers stem from statute, creating complicated questions about the limits of these powers delegated to the President by Congress. Scholars who have explored ways to achieve the proper balance between responsiveness and accountability have generally focused on the proper degree of deference that courts should provide to the President interpreting statutory provisions, with little confidence in the utility and efficacy of statutory constraints.
This Article counters this narrative by arguing that a key to achieving this balance may lie in such constraints. Instead …
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 …
Merging Offensive-Speech Cases With Viewpoint-Discrimination Principles: The Immediate Impact Of Matal V. Tam On Two Strands Of First Amendment Jurisprudence, Clay Calvert
UF Law Faculty Publications
This Article examines flaws with the U.S. Supreme Court’s 2017 decision in Matal v. Tam that equated giving offense with viewpoint discrimination. Already, the Court’s language in Tam that “giving offense is a viewpoint” is being cited by multiple lower courts. This Article argues, however, that giving offense is not synonymous with viewpoint discrimination. This Article contends that the Court in Tam conflated two distinct strands of First Amendment jurisprudence—namely, its offensive-speech cases with principles against viewpoint discrimination. The Article proposes two possible paths forward to help courts better clarify when a case such as Tam should be analyzed as …