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Articles 1 - 30 of 39
Full-Text Articles in Law
Recognizing A Fundamental Right To A Clean Environment: Why The Juliana Court Got It Wrong And How To Address The Issue Moving Forward, Robert Kemper
Recognizing A Fundamental Right To A Clean Environment: Why The Juliana Court Got It Wrong And How To Address The Issue Moving Forward, Robert Kemper
FIU Law Review
As the existential threat of climate change becomes increasingly prevalent, U.S. plaintiffs, lawyers, and activists have begun seeking redress in federal courts arguing for recognition of a constitutional right to a clean environment. Recently, in Juliana v. United States, the Ninth Circuit explicitly recognized the grave threat of climate change for the health, well-being, and security of the American people and the nation as a whole. Additionally, the court found that the U.S. government has contributed to climate change through both inaction and policy decisions that promote the use of fossil fuels. The plaintiffs claimed that they had a constitutional …
Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum
Disaggregating Slavery And The Slave Trade, Jocelyn Getgen Kestenbaum
FIU Law Review
International law prohibits slavery and the slave trade as peremptory norms, customary international law prohibitions and crimes, humanitarian law prohibitions, and non-derogable human rights. Human rights bodies, however, focus on human trafficking, even when slavery and the slave trade—and not human trafficking—are enumerated within their mandates. International human rights law has conflated human trafficking with slavery and the slave trade. Consequently, human trafficking has subsumed the slave trade and, at times, slavery prohibitions, increasing perpetrator impunity for slavery and the slave trade abuses and denying full expressive justice to survivors. This Article disaggregates slavery from the slave trade and slavery …
The Center Cannot Hold: Zoom As A Potemkin Village, Hadar Aviram
The Center Cannot Hold: Zoom As A Potemkin Village, Hadar Aviram
FIU Law Review
The time has come to click the “join” button once more. It is the end of the semester, and our colleague Abe, chair of our ad-hoc task force for online teaching, has convened an online teaching excellence panel. The purveyors of said excellence are four faculty members whose evaluations showed that they were, as his email said, “online teaching rockstars.” Unfathomably, I am one of the four, and the last scheduled to present. One by one, little rectangles pop against the black backdrop of the screen, like the bubbles my three-year-old son and I blow in the backyard out of …
The Need For Social Support From Law Schools During The Era Of Social Distancing, Michele Okoh, Inès Ndonko Nnoko
The Need For Social Support From Law Schools During The Era Of Social Distancing, Michele Okoh, Inès Ndonko Nnoko
FIU Law Review
Law students have been faced with unparalleled stress during the syndemic. They must cope with being students during the COVID-19 pandemic but also must deal with stress related to social and political unrest. This essay recommends that law schools apply social support theory in developing interventions to effectively address the needs of law students now and in the future. Social support theory focuses on the value and benefits one receives from positive interpersonal relationships. These positive relationships impact both mental and physical health and promote beneficial short and long-term overall health. However, not all supports are the same, and social …
Stereotypes, Sexism, And Superhuman Faculty, Teneille R. Brown
Stereotypes, Sexism, And Superhuman Faculty, Teneille R. Brown
FIU Law Review
This symposium article explores how law professors with caretaking responsibilities struggled so greatly during the first year of the COVID-19 pandemic. Because legal academia prioritizes masculine ideals of competence over warmth, faculty were expected to suppress their emotions and mental health needs in order to maintain the appearance of competence. While students were allowed to be seen as vulnerable individuals needing accommodations, we did not extend this same compassion to our faculty colleagues. To explain why the treatment was so disparate, I incorporated existing research on the stereotype content model (SCM) and psychological theories of dehumanization. These theories help to …
Crisis, Rupture And Structural Change: Re-Imagining Global Learning And Engagement While Staying In Place During The Covid-19 Pandemic, Shruti Rana, Hamid R. Ekbia
Crisis, Rupture And Structural Change: Re-Imagining Global Learning And Engagement While Staying In Place During The Covid-19 Pandemic, Shruti Rana, Hamid R. Ekbia
FIU Law Review
The COVID-19 pandemic led to unprecedented closures of national borders and the withdrawal of much of the social and cultural activities of society into the walls of the home. For us, educators focused on global engagement and analyzing international law and society, the abrupt retreat into the shelter of domestic walls disrupted the very subjects we were studying—inside and outside the classroom. In the pandemic’s first wave, most study abroad and international experiential programs were cancelled indefinitely, and the programs that continued had to operate in an environment of social distancing and uncertainty. We were forced to scramble to accommodate …
The Electoral Count Mess: The Electoral Count Act Of 1887 Is Unconstitutional, And Other Fun Facts (Plus A Few Random Academic Speculations) About Counting Electoral Votes, Jack Beermann, Gary Lawson
The Electoral Count Mess: The Electoral Count Act Of 1887 Is Unconstitutional, And Other Fun Facts (Plus A Few Random Academic Speculations) About Counting Electoral Votes, Jack Beermann, Gary Lawson
FIU Law Review
In this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. …
The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley
The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley
FIU Law Review
There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a …
Should The Government Have The Unrestricted Power To Dismiss Meritorious Qui Tam Actions Brought Under The False Claims Act?: A Closer Look At Why The Government Should Not Be Held To A Judicially Imposed Standard, Wallace Stage
FIU Law Review
The False Claims Act was originally enacted during the Civil War as a result of concerns that the Union Army would attempt to defraud the Government. Since then, the False Claims Act has evolved and grown into an extremely useful tool that allows individuals to bring civil actions for various reasons on behalf of the United States Government. Under the False Claims Act, an individual may bring acivil action, often referred to as a qui tam action, on behalf of the United States Government for violations of the False Claims Act. After an individual brings this type of action, the …
Mysterious Ways, Lawrence M. Friedman
Mysterious Ways, Lawrence M. Friedman
FIU Law Review
The “mystery” or “detective” novel originated in the first half of the 19th century, and quickly became extremely popular. Its origins betray changes in English and American society—the same changes that led to innovations in criminal justice, especially the creation of detective squads in the big cities. The goal of the detective was to expose secret crime—crimes committed by confidence men, and others who worked in the shadows. Thousands and thousands of detective novels have been written; they are extremely varied; but they tend to share one common trait: they turn on the problem of hidden personal identities, which the …
Put Your Hands Up, And Step Away From The Scrutiny: Lowering The Standard Of Review For Large-Capacity Magazine Legislation, Morgan Carr
FIU Law Review
This comment addresses the Ninth Circuit’s decision to apply strict scrutiny to a ban on large-capacity magazines in Duncan v. Becerra. Since its construction, the Second Amendment has afforded states the ability to regulate firearms in their respective jurisdictions. However, absent Supreme Court precedent designating a guiding standard of judicial review, American courts have come to a consensus that intermediate scrutiny is appropriate when a gun regulation does not impose a severe burden on the core protection guaranteed by the Second Amendment. Inconsistent with this approach, the Ninth Circuit used strict scrutiny to strike California legislation that regulated the possession …
A Letter From The Editor In Chief
The Covid Care Crisis And Its Implications For Legal Academia, Cyra A. Choudhury
The Covid Care Crisis And Its Implications For Legal Academia, Cyra A. Choudhury
FIU Law Review
From February 2020, when the SARS COVID virus began to have global effects until now, the world has been in the midst of the worst viral pandemic in recent memory. No country was prepared for the rapid escalation of the spread of the virus worldwide that has taken nearly five million lives globally and over 700,000 in the United States alone. Even in March and April 2020, although cities had begun to quarantine and lockdown, none could have predicted the surges of cases and the longevity of the pandemic. Schools and businesses were closed only to open again and close …
The Foundational Care Crisis, Stephanie M. H. Moore
The Foundational Care Crisis, Stephanie M. H. Moore
FIU Law Review
This article examines the care crisis as the systemic issue that it is—starting from my personal story—because my story is the story of many women—and many caregivers. Teaching business law and ethics to undergraduates, I often encounter a primary question: what is the role of social issues in a business course? Sometimes students struggle with this initial hurdle of understanding why we study diversity, equity, inclusion, and justice in the workplace. Why—for example—would we focus on lack of family leave as a primary barrier a successful business. The second question is—of course—what can we do? Social and societal issues are …
Everything I Know About Teaching Was Reinforced By Auditing Remote Kindergarten, Allie Robbins
Everything I Know About Teaching Was Reinforced By Auditing Remote Kindergarten, Allie Robbins
FIU Law Review
As a tenure-track faculty member, I am always focused on the trifecta of tenure—scholarship, service, and teaching. The pressure to publish and present is constant and unending. Service requires countless hours in committee meetings and doing the work of faculty governance. Being a faculty member focused on academic and bar support requires spending a significant amount of time meeting one-on-one with students and providing written feedback. Due to the COVID-19 pandemic, several new stressors were also added to this already-overwhelming workload –a constantly changing and elongated bar prep period, the need to create new asynchronous class components and assessments for …
A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray
A New Methodology For The Analysis Of Visuals In Legal Works, Michael D. Murray
FIU Law Review
The goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate …
Report To The Editor In Chief Of The Fiu Law Review, Thomas E. Baker
Report To The Editor In Chief Of The Fiu Law Review, Thomas E. Baker
FIU Law Review
No abstract provided.
Looking South: Toward Principled Protection Of U.S. Workers, Ann C. Mcginley
Looking South: Toward Principled Protection Of U.S. Workers, Ann C. Mcginley
FIU Law Review
In Principled Labor Law: U.S. Labor Law through a Latin American Method, authors Sergio Gamonal C. & Cesar F. Rosado Marzán argue that U.S. courts should follow the Latin American method of applying long-held jurisprudential principles to interpret labor law. The authors’ baseline is clear: applying these principles to U.S. employment law will better the employment opportunities and stability of workers who suffer from unequal bargaining power and the ever-present employer-oriented employment-at-will doctrine. Focusing on Title VII of the 1964 Civil Rights Act, and other civil rights provisions, this article imagines how applying the principles described by Gamonal and Rosado …
Zero To Hero: The Unavailability Of Bivens And Why Congress Should Intervene, Amanda Pulido
Zero To Hero: The Unavailability Of Bivens And Why Congress Should Intervene, Amanda Pulido
FIU Law Review
n Bivens, the Supreme Court held that although 42 U.S.C. § 1983 is silent as to its application to federal agents, the plaintiff had an implied cause of action against federal agents for violation of his constitutional rights. Since this decision, the Court has heavily narrowed the implied Bivenscause of action and punted the decision to Congress to codify a cause of action against federal agents. As the law currently stands, plaintiffs must overcome a confusing framework that conflates constitutional merits with whether a cause of action exists, affords extreme deference to executive decisions, and is presumptively unavailable. In June …
Attorney-Fee Shifting Is The Solution To Slapping Meritless Claims Out Of Federal Court, Gleisy Sopena
Attorney-Fee Shifting Is The Solution To Slapping Meritless Claims Out Of Federal Court, Gleisy Sopena
FIU Law Review
Strategic Lawsuits Against Public Participation (“SLAPPs”) are meritless claims brought against individuals or corporations to silence them for exercising protected speech under the First Amendment. In response to the chilling effects of these SLAPPsuits, State legislatures have enacted anti-SLAPP statutes to quickly dismiss these meritless claims and protect the targets of these suits. These anti-SLAPP statutes have two prominent components: a special motion to dismiss and an attorney fee-shifting provision that is dependent on prevailing on the special motion set forth in the statute. Federal courts sitting in diversity are divided over whether the special motion standards set forth in …
(In)Dependent Contractors: Combatting Employee Misclassification In Title 26, Kyle T. Macdonald
(In)Dependent Contractors: Combatting Employee Misclassification In Title 26, Kyle T. Macdonald
FIU Law Review
This comment addresses the use of 26 U.S.C. § 7434 as an alternative remedy for individuals who are misclassified by their employers as independent contractors for federal tax purposes. Historically, misclassified employees have used more well-known employment laws such as the Fair Labor Standards Act to sue employers who engage in employee misclassification. 26 U.S.C. § 7434 provides an underutilized, alternative means for misclassified employees to recover damages for wrongful misclassification. Originally enacted in 1996 as part of the Taxpayer Bill of Rights, 26 U.S.C. § 7434 is a tax fraud statute that allows a taxpayer to seek civil damages …
Archiving The Pandemic: What It Has Meant To Chronicle What We Wish To Forget, Katyayani Suhrud
Archiving The Pandemic: What It Has Meant To Chronicle What We Wish To Forget, Katyayani Suhrud
FIU Law Review
In the summer of 2020, when the Covid-19 pandemic and all that it brought it with was still very new, Jindal Global University, where I am a law student, began putting together an archive of this time for the university community. This piece explores what it meant to archive the pandemic while simultaneously living through it, and how other people’s stories and experiences affected my own. Attempting to distance myself from the pandemic did nothing to aid its everyday struggles. Rather, choosing to be intimately involved with how it was affecting the lives of others and also my own proved …