University of Florida Health Science Center
University of Florida Levin College of LawNot a member yet
6463 research outputs found
Sort by
Inconsistent Consistency: A Comment on Arrested Development of the Federal Common Law of Foreign Relations
No full textThe Helms-Burton Act and the WTO Challenge: Making a Case for the United States Under the GATT National Security Exception
No full textThis article analyzes the legality of the Helms-Burton Act under the WTO and GATT rules, with particular emphasis on the national security exception and the use of this exception by the United States to justify its policy towards Cuba and its trading partners. Part one describes the contextual background and specific events leading up to the passage of the Helms-Burton Act and its four key provisions. Part II discusses the international reaction to the passage of Helms-Burton and the growing dissatisfaction among the United States major trading partners with the use of unilateral economic sanctions as a primary tool of U.S. foreign policy. Part III analyzes the various national security arguments for the employment of economic sanctions against Iraq, Iran, and Libya, and how similar arguments can be used to justify the imposition of economic sanctions on Cuba. Part IV examines the applicability of the GATT national security exception to Helms-Burton as well as the strength of foreign claims in opposition to the secondary boycott imposed by Title III of the Act. Part V describes the important changes to the GATT dispute resolution system following the Uruguay Round of GATT negotiations and how the Helms-Burton Act will probably fare under the new WTO dispute settlement mechanism. Finally, this article concludes that the death knell of the Helms-Burtin Act before the WTO is by no means a foregone conclusion. Though the violations of various articles under the WTO Agreements appear to be clear-cut, Helms-Burton’s survival depends largely on how well U.S. negotiators argue the national security exception before a dispute settlement panel. The expected battle over the Helms-Burton Act in the WTO will be won or lost on this issue
Comity, Act of State, and Interpretation of Foreign Law: The Eleventh Circuit Missteps in \u3ci\u3eMcNab v. United States\u3c/i\u3e
No full textThis Note will examine the conflict the Eleventh Circuit has created with other federal courts with regard to the degree of deference U.S. courts are to give to foreign countries’ interpretations of their own laws. Part II reviews the Lacey Act as well as the facts and decision in McNab v. United States. Part III reviews the act of state doctrine as well as the doctrine of international comity as the contexts for judicial deference. Part IV will analyze how courts have construed the degree of deference that is to given to other countries’ interpretations of their own laws. Part V will summarize the impact of the Eleventh Circuit’s opinion
The Technology Dog Ate my Job : The Dog-Eat-Dog World of Offshore Labor Outsourcing
No full textThis Article specifically examines the legal implications of outsourcing, particularly in the high-technology sector. This Article will discuss the public debate on outsourcing and the relevant policy considerations in order to lay the groundwork for analysis of the legal aspects of this issue. The inquiry at hand shall be as follows: first, recent legislation relevant to outsourcing at both the state and federal levels will be examined. Next, there will be a discussion on how far state legislators are permitted to regulate outsourcing without violating the Constitution, and the issue of implied and express preemption will also be analyzed. Next, an evaluation of extraterritoriality as a factor in corporate liability in the context of business and human rights. Finally, there will be a discussion of the international regulation of corporations. These topics will be used to evaluate what normative impact certain legal factors may impose on corporations’ decisions on whether or not to outsource
The Role of the International Criminal Court in Implementing the Responsibility to Protect
No full textThis Article aims to discuss the relationship between the International Criminal Court (ICC) and Responsibility to Protect (R2P), focusing on the role of the ICC in implementing R2P. It will first examine the evolution of R2P and the ICC respectively, and actual cases that relate these two frameworks to each other. After examining their common threads and features, it will then seek to situate the ICC as one of the mechanisms for the implementation of R2P. The ICC will be considered with three components encompassed in R2P implementation—the responsibility to prevent, the responsibility to react, and the responsibility to rebuild. This Article also attempts to find the implications of the works of the ICC in consolidating the normative framework of R2P, under the presumption that a solid normative framework would enhance and facilitate implementation per se. With regard to its application in practice in three distinctive cases (Libya, Côte d’Ivoire, and the Democratic People’s Republic of Korea (DPRK)) this Article will address the potential positive and negative interactions between R2P and the ICC. It will conclude with reflections on the future of R2P, in relation to its interrogation of the ICC
How Federal Government Policy Helped Create Retirement Insecurity
Full text linkFinancial security in retirement is crucial. Without it, people fall into poverty, work until they die, and die younger than they should. In the 21st century, Americans fund their retirement from Social Security, traditional pension plans, defined contributions plans and private retirement savings plans. Of these four, only Social Security is exclusively the creature of government. Nevertheless, federal law regulates the other three to such an extent that it is fair to say that all four reflect government retirement policy. Since 1974, the federal government has spent billions of dollars supporting the private retirement system. In turn, the private retirement system has often failed its participants, sometimes leaving them impoverished. In contrast, Social Security has consistent success in reducing poverty and providing a financially strong old age. The last 50 years demonstrate that the private sector is an unreliable provider of retirement benefits. Private employers deny their workers retirement benefits, siphon off pension monies for corporate use and declare bankruptcy as a means of leaving their losses to the federal government to make right. In turn, the federal government must spend even more money regulating the private sector and protecting private workers and their retirement monies. Whatever the theories, we have decades of proof that if the federal government wants to ensure financial security for the elderly, then it should stop providing tax benefits and direct payments to private sector retirement plans and instead focus on expanding and strengthening Social Security
Unbundling Social Security from the Payroll Tax
Full text linkThis Article emphasizes that social security funding has contributed significantly to the shift in tax burdens from high income and wealth to low and moderate income and wealth individuals. To preserve social security as a welfare program primarily for older individuals and to ameliorate the distributional inequity of funding social security across income and wealth levels, the Article proposes unbundling of the benefit side of social security from its longstanding payroll tax funding mechanism. The Article recommends substituting a budget allocation from general revenues for current payroll tax revenue. The substitution would be accompanied by revenue replacement through limitations on both social security benefits for higher income individuals and more general, high income centric tax expenditures while increasing income tax marginal rates moderately. Modifying social security benefits from their current overinclusive, entitlement structure for all to moderately needs-based entitlement possibly freed from the constraint of the current contribution requirement that makes social security underinclusive would help provide the older population an income to facilitate dignified aging
Two (Or Three) to Tango: Florida Auto Insurance Bad Faith Failure to Settle Post-\u3ci\u3eHarvey\u3c/i\u3e
Full text linkInsurance companies wield immense power within their relationships with insureds. When settling claims by injured third parties, insurers control decisions that can have significant consequences, including exposing an insured to liability beyond her insurance contract’s policy limits. Like many states, Florida protects insureds from abuse of this power through the doctrine of good faith, which holds insurers liable for bad faith failure to settle third-party claims. In the 2018 decision Harvey v. GEICO General Insurance Co., the Florida Supreme Court broadened Florida’s bad faith failure to settle standard. Under Harvey, an insurer may be extra-contractually liable if it fails to act with haste and precision in the insured’s best interest when investigating and settling a claim, even when its failures amount only to negligence, and even when the insured or claimant contributed to the inability to settle. But the Harvey decision incentivizes undesirable conduct by all parties involved. Insureds and third-party claimants may be tempted to hinder settlement in hopes of triggering bad faith (and thus damages beyond policy limits). And Harvey motivates insurers to offer premature or outsized settlements—prioritizing haste over precision—in an attempt to avoid bad faith litigation, a practice that results in increased loss costs ultimately passed along to all insureds. To address these incentives, the Florida legislature should amend Florida’s bad faith statute to explicitly direct courts to consider the conduct of each party involved when assessing bad faith liability, to clarify that bad faith involves more than mere negligence, and to establish procedures to protect both insurers and insureds in difficult claims circumstances involving multiple injured parties
Fair Notice, the Rule of Law, and Reforming Qualified Immunity
Full text linkAfter a series of highly publicized incidents of police violence, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” Scholars argue that the doctrine forecloses compensation and vindication for victims and stands in the way of deterring constitutional violations in the future. One argument against qualified immunity has relied on empirical evidence to challenge what scholars take to be the main justification for qualified immunity: it prevents the threat of constitutional liability from over-deterring effective law enforcement. Yet the Supreme Court of the United States has always offered another rationale for the doctrine: it would be unfair to hold officers liable without sufficient notice that their conduct was unconstitutional. Unlike the overdeterrence rationale, scholars have almost entirely ignored the fair notice rationale for qualified immunity. This Article assesses the extent to which the fair notice rationale supports the current doctrine of qualified immunity. It does so by exploring the limits of the jurisprudential principle of prospectivity, which holds that the law must ordinarily apply only prospectively. To approximate the rule of law and to treat subjects with equal dignity, the law must be capable of guiding conduct. The principle of prospectivity obviously applies to retroactive legislation. This Article makes the novel case that unpredictable adjudications also fail to provide such guidance and that they are especially unfair when they impose retroactive moral condemnation. Constitutional liability is often highly unpredictable, seemingly at odds with prior legal duties, and, unlike most tort liability, expresses the community’s moral censure. Based on this fresh analysis of retroactive adjudication, this Article argues that concerns about fair notice to officials do support a form of qualified immunity, but one that is much more modest than the current doctrine. It supports immunity where an officer could not have reasonably foreseen constitutional liability or public condemnation, but, importantly, not when an officer acted in bad faith, violated a criminal law, or violated a constitutional rule with an underlying rationale that applies to the officer’s conduct. Taking the fair notice rationale seriously provides a principled roadmap for reforming qualified immunity
The New Pornography Wars
Full text linkThe world’s largest online pornography conglomerate, MindGeek, has come under fire for the publishing of “rape videos,” child pornography, and nonconsensual pornography on its website, Pornhub. In response, as in the “pornography wars” of the 1970s and 1980s, lawyers and activists have turned to civil remedies and filed creative anti-trafficking lawsuits against MindGeek and third parties, like payment processing company, Visa. These lawsuits seek not only to achieve legal accountability for online sex trafficking but also to reframe a broader array of online harms as sex trafficking. This Article explores what these new trafficking lawsuits mean for the future regulation of the online pornography industry. Redolent of venerable feminist debates, these emerging trafficking cases raise new questions about the scope of the First Amendment, § 230 of the Communications Decency Act—which has shielded online platforms from civil liability for content uploaded by third parties—and direct and third-party liability. They open up new avenues for civil damages against online pornography websites and entities that profit from online harms. However, this Article also posits that trafficking statutes, if mobilized too broadly, can have harmful implications for civil liberties, internet freedom, and sexual expression. Thus, it argues in favor of the judicious application of trafficking frames in these realms