Public Law and Legal Theory Commons^™

Linking The Visions, Donald J. Herzog

Other Publications

Professor Donald Herzog talks about his teaching and work.

Review Of The Dark Side Of The Left: Illiberal Egalitarianism In America, Donald J. Herzog

Reviews

In this elegantly written, provocative, and sometimes just plain provoking book, punctuated by bits of anguish and rather more pique, Richard Ellis worries that the American Left has been so passionate about equality that it has run roughshod over liberty. So put, the thesis is not exactly news. It has been the recurrent lament of conservative indictments- Tocqueville's is the canonical statement, but he has plenty of precursors and followers. And it has its scholarly variations, too, such as Arthur Lipow, Authoritarian Socialism in America: Edward Bellamy and the Nationalist Movement (1982). No profound surprises are on offer here.

Private Order And Public Institutions, Ellen D. Katz

Reviews

In Private Order Under Dysfunctional Public Order, John McMilan and Christopher Woodruff describe the private institutions that order commercial transactions in developing economies where commercial actors view the formal legal regime as unreliable. Presenting evidence from surveys of market participants in several Eastern European countries and in Vietnam, McMillan and Woodruff depict a system of private order that requires formal organization and the creation of institutions to share information and coordinate multiparty responses. These institutions do not simply offer a viable alternative to public procedures, but also enable commercial transactions to occur where the vacuum in public order would otherwise …

Rethinking Intervention In Environmental Litigation, Carl W. Tobias

Law Faculty Publications

Intervention in Public Law Litigation: The Environmental Paradigm (Environmental Paradigm) substantially enhances understanding of intervention in federal environmental disputes. These controversies are a critical type of modern civil lawsuit and perhaps constitute the quintessential form of public law litigation. Professor Peter Appel comprehensively reviews the lengthy history of the intervention mechanism, scrutinizes the substantial 1966 revision of Federal Rule of Civil Procedure 24, and closely examines the phenomenon of public law litigation and intervention in it.

Professor Appel finds that federal district court judges liberally grant requests to intervene in these cases, although he asserts that some legal scholars have …

Religion And The Law In The Clinton Era: An Anti-Madisonian Legacy, Marci A. Hamilton

Articles

No abstract provided.

After The "Social Meaning Turn": Implications For Research Design And Methods Of Proof In Contemporary Criminal Law Policy Analysis, Bernard E. Harcourt

Faculty Scholarship

The social norm movement in criminal justice has received a lot of attention in academic and public policy circles. This essay critically examines social norm writings and explores some of the implications for methods of proof and research design in the social sciences. In the process, the essay offers an alternative theoretical approach. This alternative focuses on the multiple ways in which the social meaning of practices (such as juvenile gun possession, gang membership, or disorderly conduct) and the social meaning of policing techniques (such as juvenile snitching policies, youth curfews, or order-maintenance policing) may shape us as contemporary subjects …

Rational Recreation And The Law: The Transformation Of Popular Urban Leisure In Victorian England , Rachel Vorspan

Faculty Scholarship

In this article, Rachel Vorspan investigates the complex role played by the courts in the social and cultural transformation of Victorian England. Through focusing on judicial rulings in the recreational as well as political and industrial contexts she explains how the English judiciary played an important function in "rationalizing" the major institutions and practices of urban leisure

The Common Law In Cyberspace, Tom W. Bell

Michigan Law Review

Wrong in interesting ways, counts for high praise among academics. Peter Huber's stirring new book, Law and Disorder in Cyberspace, certainly merits acclaim by that standard. The very subtitle of the book, Abolish the FCC and Let Common Law Rule the Telecosm, announces the daring arguments to follow. A book so bold could hardly fail to make some stimulating errors, the most provocative of which this review discusses. Thanks to his willingness to challenge musty doctrines of telecommunications law and policy, moreover, Huber gets a great deal right. Law and Disorder in Cyberspace argues at length that the Federal Communications …

A New Economic Theory Of Regulation: Rent Extraction Rather Than Rent Creation, Douglas Ginsburg

Michigan Law Review

Once upon a time, people believed that the government regulated various indus tries in "the public interest." The idea was that certain conditions, such as "natural monopoly" or the ability to externalize significant costs, caus ed markets to fail and governments to step in to correct that failure. Econmnic regulation predicated upon market failure can be dated conveniently to the Interstate Commerce Act of 1887, in which the Congress established the Inters tate Commerce Commission to regulate railroads in the interests of shippers, principally farmers and small businesses. The legal notion of "affectation with the public interest" dates back much …

The Future Of Governmental Ethics: Law And Morality, Jon L. Mills

UF Law Faculty Publications

Based on a speech presented at the 16th International Symposium on Economic Crime, Cambridge University, England September 13-19, 1998.

W. E. B. Du Bois Fbi Files (Foia), William E.B. Du Bois

United States Department of Justice: Publications

Covers period 1942-1960.

William Edward Burghardt "W. E. B." Du Bois was an American sociologist, historian, civil rights activist, Pan-Africanist, author, writer and editor.

PDF file is 530 pages.

Commercial Arbitration In The U.S.: The Arbitrability Of Disputes Arising From Statute-Based Claims, Sylvie Frankignoul

LLM Theses and Essays

A leading contemporary expert in arbitration has explained: "The concept of arbitrability determines the point at which the experience of contractual freedom ends and the public mission of adjudication begins. In effect, it establishes a dividing line between the transactional pursuit of private rights and courts' role as custodians and interpreters of the public interest." 1 A major part of the arbitrability doctrine deals with the kind of claims that can fall within the scope of agreements for private dispute resolution. Arbitration clauses are an integral part of the parties' transactions. Nevertheless, the American judiciary historically has refused to enforce …

Notions Of Equity In (International) Environmental Law: Inter-Generational Equity, Youk-Hyun Sung

LLM Theses and Essays

Equity has a long history. In the first chapter of this thesis, notions of equity in conventional international law will be discussed. It must be more helpful to understand equity based upon the history of the term since the issues relating to equity were raised in quite a few cases in the past. In the second chapter, by discussing environmental equity in the United States, the only remaining superpower and the largest economy in the world, the thesis tries to see the future of equity in international environmental law. Environmental equity issues in the United States are good sources for …

The Content Of Our Characterizations, Paulette M. Cladwell

Michigan Journal of Race and Law

This essay suggests both further amplification of Yamamoto's guidelines for critical race praxis and, more importantly, recommends their application to the analysis and development of progressive race theory itself.

Juvenile Crime And Punishment: An Analysis Of The "Get Tough" Approach, Shannon F. Mclatchey

University of Florida Journal of Law & Public Policy

The purpose of this note is to explore the current state of the juvenile justice system and its “get tough on juvenile crime” approach, as well as some alternatives to the current system. Part II examines the history of the juvenile court, the philosophy behind the creation of a separate system for juvenile offenders, and two U.S. Supreme Court cases that altered the nature of the juvenile court. Part III utilizes recent cases to illustrate the methods by which juveniles are transferred to adult court. Part IV discusses the problems and controversies surrounding transfer of juveniles to adult court. Part …

Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki

Articles

In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …

The Independent Counsel Statute: A Legal History, Benjamin Priester

Journal Publications

The independent counsel statute has been one of the most-if not the most-controversial federal laws of its time. A presence on the national stage for twenty years, it will expire on June 30, 1999, unless Congress affirmatively acts to save it. As the other articles in this issue of Law and Contemporary Problems attest, the statute's future seems bleak, perhaps even if substantial revisions are made. Numerous other sources also have heaped praise, criticism, and everything in between upon the statute. A law with so dark a beginning and so storied a political history may be doomed to extinction. Among …

Derivatives And Risk Framework, Ravichandra Vasant Kini

LLM Theses and Essays

The purpose of this thesis is to explore the dynamics of the fast-growing international financial markets and to study in particular the risks associated with the different kinds of financial instruments. The Barrings Bank Crisis, Proctor and Gamble, Gibson Greetings cases against Bankers Trust, and the Orange County Bankruptcy has prompted regulatory authorities to focus on the risks involved in the derivatives markets. In this paper, the first chapter explains the basic working of the different kinds of derivative instruments especially concentrating on Swaps, Futures, and Options. The second chapter goes on to explain, the risks involved in the uses …

A Socio-Legal History Of Florida's Juvenile Transfer Reforms, Henry George White, Charles E. Frazier, Lonn Lanza-Kaduce

University of Florida Journal of Law & Public Policy

This article is intended to provide a socio-legal history of the transfer laws in Florida, not only the recent reforms but also transfer provisions dating back nearly fifty years. Multiple changes involving a mix of instrumental expressive, and systems or institutional factors have occurred during this time. The goals of our analysis are to explore the underlying reasons for Florida’s transfer reforms in particular and to improve our understanding of the dynamics of legal reform in general.

Juvenile Transfers In Florida: The Worst Of The Worst?, Lonn Lanza-Kaduce, Charles E. Frazier, Donna M. Bishop

University of Florida Journal of Law & Public Policy

The purpose of this article is to examine what is needed to assess the issues of fairness and effectiveness, which are central to the rationales underpinning transfer policies. We start by considering the adequacy of the data that most often used to learn about transfer. We then report the findings from an in-depth study of local records. This field research illustrates how complex information gathering is on matters relevant to transfer. We then use the more detailed processing information gained from our study of local records to profile transfer cases and assess the comparability between criminal court transfers and their …

Using Violence As Social Control: Applying A Theory Of Conflict Management To Juvenile Disputes, Marian J. Borg

University of Florida Journal of Law & Public Policy

This article seeks to contribute both to the empirical evaluations of Black’s theory and to the literature on adolescent violence. It bridges these two area by examining the utility of Black’s theory of conflict management for explaining the use of violence in conflict situations between juveniles, an area in which Black’s propositions have not yet been systematically evaluated. The analysis focuses only on violence used to further a robbery, theft, or other predatory crime. Black’s theory is used as a basis for identifying social variables that increase the likelihood of using violence as a conflict management technique. A 1995 data …

Analyzing Juvenile Justice Policy: A Critical Review, Tonya Aultman-Bettridge

University of Florida Journal of Law & Public Policy

This article reviews a variety of perspectives that have been applied to the study of the juvenile justice system in more recent years. While not meant as an exhaustive summary of the literature on juvenile justice, this article outlines a number of different frames of reference that have been used in the analysis of policies aimed at chronic, serious and/or violent juveniles offenders, with a particular emphasis on framing the nature of the current controversy and debate. Starting with the social science of 1970s, which supported the “nothing works” doctrine of juvenile offender treatment, this work review and summarizes existing …

A House Divided: The Social And Economic Underdevelopment Of America's Inner Cities, Dash T. Douglas

University of Florida Journal of Law & Public Policy

This article attempts to demonstrate the urgent need to reconsider our current social policies and to revitalize government concern over our urban ghettos. Part II provides a historical background on how urban ghettos were formed in the United States. Part III discusses the Kerner Commission’s findings and the recommendations it made to President Lyndon Johnson and the American people. Part IV analyzes the social and economic regression experienced by inner-city communities during the past thirty years. Part V discusses the findings of the Eisenhower Foundation and describes the programs it espouses.

Finally, part VI, outlines recommendations on how the United …

Constitutional Law: Decency Requirement In Art Funding Nea V. Finley, 118 S. Ct. 2168 (1998), Amy Petrick

University of Florida Journal of Law & Public Policy

No abstract provided.

Remember The Ingredient: The View From Outside The Tower, Michael A. Mogill

University of Florida Journal of Law & Public Policy

No abstract provided.

The Appeal Provision Of Florida's Criminal Punishment Code: Unwise And Unconstitutional, Robert Batey, Stephen M. Everhart

University of Florida Journal of Law & Public Policy

This article addresses whether this startling new appeal provision in Florida’s Criminal Punishment Code is constitutional: Can the state give itself the right to appeal downward departure sentences but deny the reciprocal right of the defendant to appeal upward departure sentences? Part II of this article sets the background for answering this question by briefly sketching the history of sentencing guidelines in Florida, and how the new appeal provision undermines the wise policy behind those guidelines. Part III then outlines the infirmities of the new appeal provision under the double jeopardy, right-to-appeal, due process, and proportionality provisions of both the …

In Order To Hire The Best Person For The Job, We Have To What?, Brian John Halliday

University of Florida Journal of Law & Public Policy

This Article will examine the numerous claims of U.S. employers that they cannot fill professional-level job openings with home-grown U.S. workers, and the complaints of those who oppose the importation of foreign professional labor. By shedding some light on these broad questions, we should put into proper perspective the motivating elements behind our ever-changing United States immigration laws, separating the valid impetuses from the rhetoric. This should serve to paint a clearer picture of the actual state of affairs affecting our labor needs, and to suggest courses of action designed to stabilize and to correct the U.S. employment-based immigration system. …

Arbitration Law: Jurisprudence Of Uncertainty, Matthew L. Hicks

University of Florida Journal of Law & Public Policy

No abstract provided.

Perilous Potholes In The Path Toward Patent Law Harmonization, Kevin Cuenot

University of Florida Journal of Law & Public Policy

This Note will address the public policy issues and the economics involved with changing the United States patent system to a first-to-file system.

Toward A More Utilitarian Juvenile Court System, Rod Smith

University of Florida Journal of Law & Public Policy

No abstract provided.