Lawrence J. Marraffino
Adjunct Professor of Law Practice Management
Marraffino gave a Florida Bar Sponsored Seminar on the Solo Practice of Law on Oct. 22 in Tampa. The seminar was well-attended by mostly experienced solos looking for new ideas on further success in solo practice, as well as lawyers looking to strike out on their own.

Diane Mazur
Professor of Law

“Is Obama’s Excuse for Not Repealing ‘Don’t Ask, Don’t Tell’ Legitimate?” (Oct. 19, 2010, Newsweek)

Although President Barack Obama opposes the military’s “Don’t Ask, Don’t Tell” policy, he claims he is still obligated to enforce it, while others say that he has other options and could repeal the policy if he really wanted to. Mazur addresses legal and historical issues relevant to the issue.

From the article:
“Obama is correct in the most general terms,” says Diane Mazur, a former Air Force officer who teaches law at the University of Florida. “Federal law can go away in one of two ways: Congress can repeal it or a court can find it unconstitutional.”

“Since Lawrence v. Texas, you can no longer discriminate against gays without reason,” says Mazur. “The constitutionality of ‘Don’t Ask, Don’t Tell’ has changed since Congress enacted it.”

“Stop-loss authority is a statutory authority enacted by Congress,” Mazur explains. “It gives the president authority to suspend any law that involves the discharge of service members. In times of national emergency there might be lots of reasons.”

“The president has not openly discussed why [he is not using stop-loss],” says Mazur. “Typically, he has denied that he has any such authority and no one has really pressed him as to why.”

“My only plausible explanation is the president made a political accommodation with the military and Congress that ‘I’m not going to step in the middle of this,’ ” Mazur says. But as pressure builds from his impatient supporters, Mazur adds, “He’s finding it easier said than done for a president to say, ‘Even though I’m commander in chief, I’m going to stay out of it.’ The pressure is becoming greater for him to justify how he can stay out of it.”

“Case against DADT depends on how well injunction against it works” (Oct. 19, 2010, The National Law Journal)

Mazur commented on latest developments on the military’s “don’t ask, don’t tell” policy.

From the article:

“Every day that goes by in which the Pentagon is not enforcing the policy against its current members, and every day that goes by in which the Pentagon enlists openly gay people and the world doesn’t end, it’s going to get harder to make the argument to a court…of irreparable harm,” said Diane Mazur, a professor at the University of Florida Levin College of Law and legal co-director of the Palm Center. “The judges are likely to say, ‘What harm are you referring to exactly?’”

“The R.O.T.C. Myth” (Oct 25, 2010, The New York Times)

Mazur wrote an op-ed piece for The New York Times in which she addresses the common misconception that the Reserve Officer Training Corps has been banned on some college campuses, particularly Ivy League schools. In actuality, the R.O.T.C. left the campuses because of a disagreement about complying with standards. However, Mazur said it would benefit the military to return to those campuses.

From the article:
Everyone buys into the myth, but at the expense of military readiness. The military needs to return to the colleges it walked away from, and everyone needs to stop pretending that R.O.T.C. programs ended because of a ban.

Martin J. McMahon, Jr.
Stephen C. O’Connell Professor of Law
McMahon spoke at the University of Montana School of Law, 58th Annual Tax Institute, Missoula, Mont., Oct. 22, on the topic: “Living With (And Dying By) the Codified Economic Substance Doctrine.” Earlier this year, Congress enacted new § 7701(o), codifying the economic substance doctrine, under which tax benefits otherwise allowable under the literal wording of the Code and Regulations can be disallowed. The presentation examined recently enacted § 7701(o) and the associated new strict liability penalty regime applicable to transactions that are found to lack economic substance. It put each of the specific provisions of § 7701(o) in the context of prior case law, and where possible assessed the future impact of the various provisions.

Daniel Sokol
Assistant Professor of Law
Sokol spoke to the U.S. Chamber of Commerce in Washington, D.C., on the role of the academy in development of a robust competition culture.

Michael Allan Wolf
Richard E. Nelson Chair in Local Government Law

“Halt reveals lenders’, firms’ dubious moves” (Oct. 23, 2010, The Palm Beach Post)

As more information is revealed about how some lenders, law firms and loan managers have been handling foreclosures recently, it is becoming more evident that laws may have been broken and foreclosures were not handled properly.

“What we are seeing is unprecedented, a combination of widespread foreclosures and unemployment, coupled with a change in the nature of the law practice,” said Michael Allan Wolf, a University of Florida property law professor. “We now have very large law firms that have very large financial companies as clients, and that can be a deadly combination.”

Servicemembers Legal Defense Network attorneys and Prof. Diane Mazur sit on a panel discussion on "Don't Ask, Don't Tell." (Photo by Vincent Massaro)

The Congressional Budget Office reports that the U.S. Army spent $216 million in 2005, mostly trying to convince young people to serve. Yet, a group of Americans, qualified in every other way, find that they are not welcome in the military. Homosexuals must conceal their sexual orientation or risk discharge, thanks to the law known as ‘Don’t Ask, Don’t Tell,’ or DADT.

On Tuesday, Oct. 26, the American Constitution Society and OutLaw teamed up to teach students more about the law, how it operates, and the effect that it has on the military and on individuals. Speaking at the event were Aaron Tax and David McKean, attorneys with the Servicemembers Legal Defense Network, which strives to eliminate ‘Don’t Ask, Don’t Tell.’ Joining them was UF Law Professor Diane Mazur, an expert on military law, whose scholarship includes the new book “A More Perfect Military: How the Constitution Can Make Our Military Stronger.”

McKean spoke first, and among the things he explained was what, exactly, homosexual conduct is judged to mean. Currently, there are three categories.

“One of those,” he said, “is a statement to anyone, anytime, anywhere, in your life that you are gay, or words to that effect.”

The second, McKean said, is acts. However, this may not mean what one thinks it would. McKean explained that this is often interpreted broadly and can include things like handholding. The third category is marriage, a civil union, or something similar.

Tax spoke of some recent legal challenges to the law, some of which had been handled by the Legal Defense Network. He told the story of one individual, a former Air Force captain named Monica Hill. Hill is a physician who had had her medical education paid for by the military in return for her service. She was told by the Air Force that she was being assigned to Andrews Air Force Base. Unfortunately, Hill’s partner of 14 years was then diagnosed with terminal cancer. Hill divulged her sexual preference in asking for a deferment for her assignment, and was soon discharged.

“Not only that,” Tax said, “but because her statement was considered voluntary, they came after her for the entire cost of her medical school education.”

Mazur spoke to the reason why DADT is even still around in the first place, using an analogy to a kid’s game.

“Do you remember the kids’ game hot potato?” Mazur asked, rhetorically. “The idea was that you tossed the ball to the next kid as fast as you possibly could, because whoever it is that’s holding the ball is the loser. Unfortunately, this is how the government plays the political game involving ‘Don’t Ask Don’t Tell.’”

She explained that there is considerable support from Congress, the military, and the executive branch to end DADT, but that no one wants to take responsibility for actually ending it. For example, President Barack Obama has asked the military to examine how it would make changes, and asked Congress to think about how DADT would be repealed or replaced. Unfortunately, each party seems to do their best to punt the problem.

The speakers then opened the floor to questions from students. One student asked what steps would be taken to protect gay soldiers from abuse or harassment once they were allowed the serve openly. Tax said that it is their understanding that soldiers would probably fall under the Equal Employment Opportunity (EEO) laws that protect civilian workers. He also added that this issue deals with what he sees as a common misconception.

“I think there’s a misconception,” Tax said, “that, on day one, everyone is going to come running out of the closet, or that they are going to be required to come out.”

Barbara Bennett Woodhouse discusses intercountry adoption at the Fifth Annual Weyrauch Distinguished Lecture in Family Law Wednesday, Oct. 27. (Photo by Joey Springer)

Barbara Bennett Woodhouse, former David H. Levin Chair in Family Law and founding director of the University of Florida Levin College of Law Center on Children and Families, was welcomed back to UF Law for an annual lecture Wednesday, Oct. 27.

Woodhouse analyzed intercountry adoption laws — a controversial topic that has undergone multiple shifts in thinking since she adopted a child cross-border from Canada in 1972.

Woodhouse delivered her lecture, “Regulating the Global Market in Babies: No Private Placements, No Choice of Color, No Returns,” to over 100 UF Law students, faculty and guests for the Fifth Annual Weyrauch Distinguished Lecture in Family Law.

Woodhouse, the LQC Lamar Professor in Law at Emory University School of Law, specializes in adoption, child welfare law, family law and children’s rights.

In her lecture, she discussed the adjustments of adoption law over time, and how comparative law has played a role in looking at the dramatic differences of intercountry adoption laws. She used the example of Italy, a country typical of the European Union, to compare U.S. adoption law and the approach of other countries.

She focused on three main themes, as noted in the title of the lecture, including the issue of private placement. In the U.S., such arrangements between birthparents and adoptive parents are common, with the parties arranging for the placement of a particular child. In contrast, there are no private placements in Italy — meaning the state must play a significant role in the adoption process. There can be no private arrangements between birthparents and adoptive parents.

She also discussed the role of race in placement — more specifically, that parents who specified a preference of color were not considered suitable adoptive parents in a recent case decided by the Italian Supreme Court, in contrast to the common practice allowed in the U.S. where adoptive parents can specify whether they are willing or unwilling to adopt children who do not match the parents racially.

The “no returns” part of her lecture involved the difference between the treatment of faulty or problematic adoptions. In the U.S., if there is a problem with adoption, it is automatically treated as faulty, and the child is returned to the birthparents. A prime example of this involved two Indian girls advertised as 11 and 12 years old. When they arrived to the adoptive parents, the couple was horrified to learn that the girls had been stolen and were 15 and 21 years old. The girls were soon returned to their birthparents.

In contrast, a case in Italy involved an abandoned newborn who had been placed in foster care. The foster parents asked the agency multiple times to adopt the child, but instead, another prospective couple was granted the adoption. The court considered that since the children had been in the second placement for some years, returning them to the original foster parents would not be in their best interests. The foster couple was awarded 10,000 euros in damages and 5,000 euros in legal fees.

Among the factors that affect shifts in thinking are children’s rights, increased respect for the role of nature as opposed to nurture, and increased respect for culture.

She acknowledged that some African-American scholars have challenged conventional ways of thinking about adoption, and cited Prof. Shani King’s article “Challenging MonoHumanism: An Argument for Changing the Way We Think about Intercountry Adoption.”

In his article, King outlines five narratives and critiques them with data and logic: The Humanitarian History Narrative, The Rescue Narrative, Improved Life Changes Narrative, the Invisible Birth Parents Narrative and the Natural “Market” for Intercountry Adoption Narrative.

“We currently have a distorted and artificially narrow conception of intercountry adoption, a conception that I have referred to in this article as MonoHumanism,” writes King.

King’s concept of MonoHumanism is one where the American culture is a superior one to that of other countries, and that the United States has substituted its own view for positive knowledge of other countries.

Woodhouse focused on several fundamental differences between the adoption laws of the United States and Italy, and said that statistics show a decline in intercountry adoption. Perhaps, she said, access to new reproductive technologies has opened up new avenues to becoming a parent.

“There are children who truly have no one to care for them,” Woodhouse said. “Currently, there are over 120,000 orphans in the United States.”

She also mentioned a concern for racism in the United States for a wanting specific type of child – typically white, female babies. Non-African-American babies are seven times more likely to be adopted than African-American babies, and the “global market” in babies seems to be following this trend, she said.

Once a country emerges as a new place for adoptable babies, it sometimes leads to abuse of the system for monetary gain. A non-African-American female child typically costs around $38,000.

“What role does international law play in moderating this [system abuse] and protecting the children?” Woodhouse asked.

She mentioned the United Nations Convention on the Rights of the Child (CRC), the first legally binding international instrument that incorporates the full range of human rights – cultural, economic, civil, political and social — with 54 articles and two Optional Protocols that spell out the basic human rights to which every child is entitled.

The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption establishes co-operation between parties involved in international adoption.

Woodhouse made a pitch for comparative law — the best way to avoid MonoHumanism is to gain positive knowledge of other countries, she said.

Some of the most notable differences between United States and Italian adoption laws include the absence of provision for voluntary surrender and no process for involuntary termination of parental rights — a child in Italy may only be placed for adoption if it has been abandoned. The U.S. considers a child adoptable in situations of voluntary surrender and as a result of involuntary termination of parental rights – for example, severe or chronic abuse or neglect, abandonment, long-term mental illness or deficiency of the parent(s), or long-term alcohol- or drug-induced incapacity of the parent(s).

In Italy, every effort is made to place the child within the country of origin, and if that can’t be done, then a matching system is implemented to find a fitting home for the adoptable child.

“There is much to learn from comparative law,” Woodhouse said. “These Italian laws may actually present a viable alternative. They push us to explore how two countries can reach two different conclusions on what is right and just.”

The Weyrauch Distinguished Lecture in Family Law is hosted by the UF Law Center on Children and Families. The lecture was established in 2008 in honor of Prof. Walter O. Weyrauch, internationally known for his work in foreign and family law. He retired in December 2007 after 51 continuous years of distinguished teaching and scholarship at UF. Weyrauch passed away Oct. 17, 2008.