Law Commons^™

Inevitable Errors: Defamation By Hallucination In Ai Reasoning Models, Lyrissa Barnett Lidsky, Andrew Daves

UF Law Faculty Publications

Over the last millennium, defamation law has adapted to many new information technologies, including the printing press, the telegraph, and the internet. Now, defamation law must adapt to the challenges presented by generative artificial intelligence, and specifically the propensity of Large Language Models to produce defamatory hallucinations. In this article, we unite the lessons of legal history with cutting-edge computer science research in developing a legal framework for addressing defamatory hallucinations produced by AI reasoning models. This article breaks new ground by recognizing both the inevitability and even desirability (in some instances) of AI hallucinations. We argue that defamation law …

Dirty Water: The Failure Of The Clean Water Act's Tmdls, Annie Brett

UF Law Faculty Publications

Nonpoint source water pollution is the largest cause of water pollution in the United States today. From harmful algal blooms to acid rain to red tide, the impacts of nonpoint source pollution are devastating for human and environmental health. In the last several decades, states and the Environmental Protection Agency have spent billions of dollars trying to address this pollution through the Clean Water Act’s TMDL program. TMDLs have been derided for their lack of a coherent regulatory driver, but many academics have come to argue for their value as an example of information regulation: a regulation that requires the …

The Second Life Of Information, Thomas D. Haley

UF Law Faculty Publications

Information permeates every aspect of modern life. It is the price we pay for access to online services and the form in which we embody creative works. Law and policymaking tend to focus on first-order uses and transactions; information for access serves as the paradigmatic example. But information enjoys a robust second life—one that constitutes the true value and power that drives firms’ decisionmaking—as assets. Once aggregated and assetized, the power and risk associated with information increases exponentially.

To explore the implications of information’s second life, this Article introduces the concept of “untethered information.” Assetization depends on severing the connections …

Litigating Predator Management, John A. Erwin

UF Law Faculty Publications

Despite significant gains over the last half-century, predators such as mountain lions, wolves, and bears are in the crosshairs once again. Scientific management, democratic principles, and the holding of wildlife resources in trust for the public are all foundational pillars of the North American Model for Wildlife Conservation, yet state wildlife agencies and legislatures routinely fail to uphold these values where predators are concerned. Many of these tensions were thrust into the public consciousness in 2020 when gray wolves were temporarily delisted under the Endangered Species Act (ESA), resulting in a disastrous wolf hunting season in Wisconsin. States that have …

Mission Creep Or Mission Failure? A Review Of Melissa Jacoby's Unjust Debts, Christopher D. Hampson

UF Law Faculty Publications

No abstract provided.

Should Like Cases Be Decided Alike? A Formal Analysis Of Formal Equality, Benjamin B. Johnson, Richard Jordan

UF Law Faculty Publications

The idea of formal equality—the principle that we should treat like cases alike—is a cornerstone of political and legal theory that supporters have placed at the heart of theories of justice since Aristotle. Critics have rejected it as vacuous or a tool of oppression. Despite its central importance, formal equality has received little formal analysis. In this article, we formalize the like-cases maxim and explore its implications. We show that both Aristotle’s principle of proportionality and Dworkin’s principle of integrity can be directly derived from formal equality. It is therefore not vacuous, but formal equality is more demanding than its …

The Rise And [?] Of Anti-Administrativism, Gary Lawson

UF Law Faculty Publications

Scholars have proclaimed the administrative state to be "Under Siege" or subject to a "Never-Ending Assault." Was the election of President Donald Trump on November 5, 2024 the sixth, if not yet the seventh, day around the walls? 

This seems an appropriate time to consider the present and future of opposition to the administrative state – something that has come to be dubbed "anti-administrativism." The first task, as is usually the case when one seeks intellectual clarity, is to figure out what one is talking about. What is this "anti-administrativism"? Without knowing the answer to that seemingly simple question, one …

Life, The Universe, And The Judicial Power, Gary Lawson

UF Law Faculty Publications

In figuring out the role of the federal courts in the constitutional structure, the obvious place to start is with the Constitution. But what does the Constitution tell us about the federal courts and the judicial power vested in them?

Surprisingly little—perhaps even shockingly little—when one reflects on it. The “judicial Power” is one of the three governmental powers regarded by the founding generation as having “an unalterable foundation in nature.” The Constitution, however, does not define that power, instead taking for granted that everyone will simply know what “judicial Power” involves. History has proven that assumption to be false. …

Barriers To Insurance Innovation, Peter Molk

UF Law Faculty Publications

In exchange for a payment, insurance companies assume risks from policyholders. Because of their ability to aggregate and diversify many risks, insurers can offer this service at a price that is attractive to policyholders. Yet there are risks that insurers refuse to cover, even though the insurer appears to be in at least as favorable a risk-bearing position as is the policyholder. Property insurance contracts, for example, place on policyholders the risk that rebuilding costs will be greater than expected, or that a home will be destroyed by flood or nuclear damage, or that exposure to natural hazards will change …

Salvaging Article Iii, Annie Brett, Ryan Scott

UF Law Faculty Publications

Admiralty was once the foundation of our legal and economic survival. In recent years, however, it has come to be viewed as an anachronistic backwater of the law. Unfortunately, this perception belies the reality: admiralty law is as vitally important as ever, not just to the commerce that it supports but in the realities it illuminates about the federal courts and our constitutional structure.

This Article looks at the case study of historic treasure shipwrecks to show how our legal system has strayed increasingly far from the core principles of admiralty that the founders enshrined in Article III of the …

The Gym-Pire Strikes Back: Is The Eighth Circuit's Vacatur Of The Ftc's Click-To-Cancel Rule The End Of The Regulatory Workout For The Health And Fitness Industry?, Nicholas J. Christopolis

UF Law Faculty Publications

There is a broader regulatory battle in which subscription-based businesses, particularly in the health and fitness industry, are being reined in by increasingly aggressive consumer protection regimes. This Article examines this conundrum facing regulators and affected businesses in four parts. Part I explores the concept of negative option marketing, the FTC’s theory of harm and justification for promulgating the Rule in the modern subscription economy, and the compliance burdens it would have imposed on the health and fitness industry. Part II explains the pushback from the health and fitness industry that delayed enforcement, created loopholes, and helped fuel the lawsuits …

Drafting In The Digital Age: Contract-Design And Web-Based Consumer Contracts, Ben Fernandez

UF Law Faculty Publications

Consumers often do not read the contracts they sign. They know the basic terms of the deal and take the risk that it is enough to avoid being sued for breach. Even sophisticated businesspeople often do not read the documents they sign; they rely on their attorneys to tell them what they need to know. If the sole purpose of documenting a contract is to protect the party that has the financial resources and the leverage to hire an attorney to draft it, then the attorney doesn’t do their client a disservice by focusing solely on the contract’s enforceability. A …

Restoring Public Trust In Elections: An Empirical Study Of How Campaign Finance Reform Can Restore Public Trust In Elections, Matthew Dale Kim

UF Law Faculty Publications

The American public has become deeply distrustful of elections. This distrust is partly due to Supreme Court decisions curtailing campaign finance restrictions, on First Amendment grounds, to spending that creates an appearance of quid pro quo corruption. The Court’s reasoning assumes that, although the government has an interest in protecting the public’s trust in elections, campaign spending does not pose a threat to the public’s trust absent the appearance of quid pro quo corruption. However, it is unclear if campaign spending undermines the public’s trust in elections through means other than the appearance of quid pro quo corruption. If it …

Medication Abortion And The Mails: The Ghost Of Anthony Comstock Rides Again?, Lars Noah

UF Law Faculty Publications

Mail-order dispensing of the prescription drug mifepristone has become the latest flashpoint in this country’s long-running debate over abortion access. It also has brought back from the dead one of the oldest federal statutes to address that contentious subject. In their fight to limit access to a drug approved by the FDA one quarter of a century ago, abortion opponents have rediscovered the Comstock Act. Although amended on several occasions since 1873, Congress never managed to repeal or clarify its ambiguous language relating to abortion. On its narrowest reading, this provision would have no impact whatsoever on access to mifepristone; …

Flaws In The Preemption Defense To Liability Claims Against Generic Drug Manufacturers, Lars Noah

UF Law Faculty Publications

More than a dozen years have passed since the U.S. Supreme Court decided that federal preemption protects manufacturers of generic (but not brand-name) drugs from most types of products liability claims. This seemingly arbitrary distinction sprang from a peculiarity in the regulations of the U.S. Food and Drug Administration (FDA). That agency soon thereafter proposed to modify its rules in order to eliminate this asymmetry in how the implied preemption defense worked to bar inadequate warning claims, but its effort ultimately failed, while lower courts have confronted some creative efforts to circumvent the special protection enjoyed by generic drug manufacturers. …

Dead Infants And Taking The Fifth, Tracey Maclin

UF Law Faculty Publications

This Essay offers tribute to Professor Colb's teachings and insights expressed in her writings on the Court's Miranda and Self-Incrimination Clause rulings. Since the start of the twenty-first century, Professor Colb wrote many blogs on the Court's Miranda doctrine. Miranda v. Arizona famously held that persons under arrest must be warned of their right to silence and to have counsel's advice before being subject to interrogation. Generally speaking, Professor Colb was critical of the Court's results and reasoning—for good reason.

As someone who supports a broad interpretation of the Fifth Amendment, I offer a counterview of Professor Colb's conception of …

Do Ais Dream Of Electric Boards?, Robert J. Rhee

UF Law Faculty Publications

When artificial intelligence (“AI”) acquires self-awareness, agency, and unique intelligence, it will attain ontological personhood. Management of firms by AI would be technologically and economically feasible. The law could confer AI with the status of legal personhood, as it did with the personhood of traditional business firms in the past, thus dispensing with the need for inserting AI as property within the legal boundary of a firm. As a separate and distinct entity, AI could function independently as a manager in the way that legal or natural persons do today: i.e., AI as director, officer, partner, member, or manager. Such …

The Constitutionality Of Assisted Outpatient Treatment, E. Lea Johnston

UF Law Faculty Publications

States are increasingly turning to assisted outpatient treatment (more accurately called preventive outpatient civil commitment, or POC) to ameliorate the mental health and homelessness crises. These laws authorize court-ordered community treatment for individuals with mental illnesses and histories of treatment noncompliance. The treatment aims to prevent psychiatric deterioration before it leads individuals to endanger themselves or others. Affected individuals pose no immediate danger, typically can make rational treatment decisions, and may reside in the community. These laws dramatically extend states’ means of social control and cannot be easily justified by traditional understandings of state police power or parens patriae commitment …

"May It Please Her Honor": The United States' First Women Judges, 1870-1930, Elizabeth D. Katz

UF Law Faculty Publications

Between 1870 and 1930, hundreds of women served as judges in the United States. While a small number compared to the men who served, these pathbreaking officials were particularly visible and influential in women's efforts to secure political rights and advance in the legal profession. Women's progress in obtaining judgeships developed in a regional pattern, with women in the Midwest and West able to secure earlier and broader jurisdiction positions than their counterparts in the Northeast and South. Seeking access to the judiciary, women in conservative states made gendered arguments about women's supposed superiority in overseeing cases involving women, children, …

The Elected Judge, Matthew Dale Kim

UF Law Faculty Publications

Many legal scholars and jurists oppose electing judges. Their core criticism against judicial elections is that elected judges are incentivized to avoid issuing unpopular, countermajoritarian decisions in constitutional law cases and thus fail to safeguard minority rights against abuses of the majority. Scholars have described this problem as the elected judges’ “majoritarian difficulty.” Numerous empirical studies suggest that elected judges do, in fact, fear electoral backlash and allow majoritarian demands to affect their decision-making.

This Article asks whether such fears are warranted. Elected judges should not allow majoritarian pressures to affect their decision-making unless the American public is aware of …

Employment Law Reform From A Contracts Perspective, Rachel Arnow-Richman

UF Law Faculty Publications

For most of history, pro-worker legal reform has meant legislative action. By contrast, this Essay, prepared for the 75th Annual NYU Conference on Labor & Employment Law, looks to contract law as the source and site of progressive change.

This may seem odd. Contract has primarily been a tool of management. Terms set by the “parties” to an employment relationship, are likely to be those imposed by the employer. Yet contract law is essential to employment law reform. Protective legislation is incremental and discrete. Beyond its provisions, the employment relationship is defined entirely by private ordering. The day-to-day experience of …

Winding Authority: Consent By Registration And The Legal Singularity, Christina Frohock

Articles

More than forty years ago, the Pennsylvania legislature enacted a uniquely broad and explicit statute directed at out-of-state corporations: registration as a foreign corporation constitutes consent to general personal jurisdiction in the Commonwealth. Pennsylvania's consent-by-registration statute has faced Fourteenth Amendment due process challenges in state and federal courts alike, rising all the way to both the Supreme Court of Pennsylvania and the U.S. Supreme Court. This Article first tracks the myriad challenges to the Pennsylvania statute, culminating in the U.S. Supreme Court's opinion in Mallory v. Norfolk Southern Railway Co. in 2023. The Article then argues that the statute's zigzagging …

Salerno And The Second Amendment, Jacob D. Charles

SMU Law Review

The Supreme Court’s Second Amendment is beginning to take more concrete shape. In United States v. Rahimi, the Court rejected a challenge to the federal prohibition on gun possession by those subject to certain kinds of restraining orders. In that case, the Court’s analysis hinged in part on the difficulty of successfully waging facial constitutional challenges. It confirmed that the teaching of United States v. Salerno—that a statute is only facially unconstitutional if it has no valid applications—applies fully to the Second Amendment. Although it relied on this procedural lesson from Salerno, the justices overlooked Salerno’s …

The Law Of First Impression, Amy J. Griffin

SMU Law Review

Judicial decision-making is governed by a complex web of unwritten operational rules—rules made by judges themselves. Some of these rules, like stare decisis or canons of interpretation, garner endless attention. Others remain unnoticed, becoming entrenched without ever being evaluated.

This Article is the first to identify and evaluate one such category of rules—those governing issues of first impression Public and academic attention is focused almost entirely on judicial fidelity to precedent, not what courts do in its absence. But issues of first impression are decided regularly by all U.S. courts, and the first impression label can have concrete legal effects. …

Chapter 11 Mediation, Laura N. Coordes

Emory Bankruptcy Developments Journal

Mediation has become an increasingly popular and powerful tool in chapter 11 reorganizations, especially in large cases. Despite its widespread and growing use, mediation in chapter 11 is under-studied. This Article begins to fill this gap in the literature by critically assessing mediation, a form of largely private dealmaking, in the context of a bankruptcy process that is supposed to be largely public. The Article begins by discussing mediation’s popularity within the bankruptcy process before turning to a review of issues that have arisen in recent cases, providing a critical assessment of mediation’s promise and perils. In particular, the Article …

The Walking Debt: How Zombie Pacs Threaten Federal Elections And Proposals For Reform, Ariel Bagley

Emory Bankruptcy Developments Journal

Zombie political action committees are political entities that are legally alive but whose candidate the committee is attached to has either died or functionally retired from politics. These committees form as a byproduct of skewed incentives in campaign finance law. The Federal Election Commission (“FEC”) is tasked with enforcing campaign finance laws and terminating political committees. However, it is structurally ineffective at enforcing those laws. Congress, meanwhile, has defunded the FEC and is poorly incentivized to improve its efficacy, as any Congressperson may one day benefit from having a zombie committee. When zombies do form, they are almost impossible to …

Environmental Law—Relatively Impermanent Waters: The Need For State Regulation Of Isolated Wetlands In Arkansas After Sackett V. Environmental Protection Agency, Caroline E. O'Connor

University of Arkansas at Little Rock Law Review

No abstract provided.

Intellectual Property—Copyright Law—Ai Is “Actual Imitation:” An Argument On Why Generative Ai Should Not Be Allowed To Learn From Copyrighted Materials Without Authorization, Tj Stotts

University of Arkansas at Little Rock Law Review

No abstract provided.

Axiomatic Shifting Paradigms: Wittgenstein’S Language-Games, Gödel’S Incompleteness Theorem, Language, Law, And The Limits Of Formalism, Charles Edward Andrew Lincoln Iv

University of Arkansas at Little Rock Law Review

This Article shows how Ludwig Wittgenstein’s idea of “language-games” and Kurt Gödel’s Incompleteness Theorems mark the outer limits of legal formalism and other leading interpretive theories—textualism, originalism, and purposivism. It begins by tracing Wittgenstein’s progression from a “picture theory” of language to the view that social context drives meaning more than any simple correspondence between words and reality. Gödel’s work on formal systems, suggesting that mathematics—long held as the pinnacle of logical certainty—itself cannot be both consistent and complete, reinforces the notion that purely “logical” approaches cannot capture the full range of linguistic and social nuances at play in law. …

Criminal Law— Addressing Probation Revocation Policies In Arkansas, Hunter Willis

University of Arkansas at Little Rock Law Review

No abstract provided.