Law Commons^™

Secrecy On Steroids: How Overzealous State Confidentiality Laws Expose Leakers And Whistleblowers To Retaliatory Prosecution, Frank D. Lomonte, Anne Marie Tamburro

University of Miami Law Review

It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.

The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint …

Choice Of Law Issues In Eleventh Circuit Insurance Cases Arising From Lex Loci Contractus, Tom Schulte, Andrea Defield, Jorge Aviles

University of Miami Law Review

A growing number of cases have emerged from the Eleventh Circuit struggling with the application of lex loci contractus to choice-of-law issues in the insurance context. And while the federal courts continue to struggle, the state courts in the Eleventh Circuit have not yet offered definitive guidance on when to apply lex loci contractus, and when to depart from it. In light of this choice-of-law issue, which can be and often is outcome determinative, this Article offers practical guidance on how policyholders can avoid application of an unfavorable state’s law to their insurance dispute, both before and after litigation …

Machine Speech: Towards A Unified Doctrine Of Attribution And Control, Brian Sites

University of Miami Law Review

Like many courts across the country in 2023, courts in the Eleventh Circuit were met with novel claims challenging ChatGPT and other artificial intelligence tools. These cases raise common questions: How should courts treat the speech of machines? When a machine generates allegedly defamatory material, who is the speaker—mortal or machine? When a machine generates expressive creations, who is the artist, and does that shape copyright eligibility? When a machine makes assertions about reality through lab analyses and other forensic reports, who is the accuser, and how does the answer impact a defendant’s rights at trial? Should those answers stem …

Gatekeeping & Class Certification: The Eleventh Circuit’S Stringent Approach To Admitting Expert Evidence In Support Of Class Certification, Pravin Patel, Mark Pinkert, Patrick Lyons

University of Miami Law Review

Federal Rule of Civil Procedure 23 is silent on whether evidence offered in support of a motion for class certification must be admissible under the Federal Rules of Evidence. The Supreme Court has not addressed this issue, and there is currently no authoritative framework for incorporating all or some of the federal evidentiary rules into the class certification process. Resultantly, circuit courts are split on this question and have coalesced among several different approaches. The Eleventh Circuit follows a rigorous evidentiary standard in which evidence offered in support of class certification generally must be admissible under the Federal Rules of …

For Freedom Or Full Of It? State Attempts To Silence Social Media, Grace Slicklen

University of Miami Law Review

Freedom of speech is, unsurprisingly, foundational to the “land of the free.” However, the “land of the free” has undergone some changes since the First Amendment’s ratification. Unprecedented technological evolution has ushered in a digital forum in which the volume, speed, and reach of words transcend the Framers’ visions of the First Amendment’s aims. Social media platforms have become central spaces for public discourse, where opportunities to create—and repress—speech are endless. From enabling individuals to freely express their views, to allowing state actors to limit open exchanges, it is about time that the Supreme Court tackles this complex issue of …

Establishing An End To Lemon In The Eleventh Circuit, Amanda Harmon Cooley

University of Miami Law Review

Over half a century ago, the Supreme Court decided Lemon v. Kurtzman, the most controversial Establishment Clause case in judicial history. And despite the Lemon test’s constant criticism, the Court has never expressly overruled the decision in its entirety. This continues to be the case even after Kennedy v. Bremerton School District, in which the Court noted Lemon’s abandonment rather than its complete abrogation. As a result, lower federal district courts have been left in limbo regarding whether Lemon is fair game for any of their Establishment Clause determinations and have been inconsistent in using it as …

Hiding In Plain Language: A Solution To The Pandemic Riddle Of A Suspended Grand Jury, An Expiring Statute Of Limitations, And The Fifth Amendment, Nicole D. Mariani

University of Miami Law Review

Under the statute of limitations applicable to most federal crimes, 18 U.S.C. § 3282(a), “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” That long-standing, generally uncontroversial procedural statute was thrust into the spotlight in 2020, when courts, prosecutors, and criminal defendants confronted an unprecedented and extraordinary scenario.
In response to the COVID-19 pandemic, many federal district courts suspended grand juries to prevent the spread of the highly contagious life-threatening virus through group congregation. Indeed, …

Maritime Magic: How Cruise Lines Can Avoid State Law Compliance Through Passenger Contracts, Cameron Chuback

University of Miami Law Review

Florida Statutes section 381.00316 prohibits businesses in Florida from requiring consumers to provide documentary proof of COVID-19 vaccination to access businesses’ goods and services. Norwegian Cruise Line Holdings (“NCLH”) has recently challenged section 381.00316’s applicability to its cruise operations because NCLH believes that requiring its passengers to provide documentary proof of COVID-19 vaccination is the one constant that allows NCLH’s cruise ships to smoothly access foreign ports, which have differing COVID-19 protocols and rules. In Norwegian Cruise Line Holdings, Ltd. v. Rivkees, the United States District Court for the Southern District of Florida ruled in favor of NCLH on this …

Out Of Reach: The Mdlea’S Impermissible Extraterritorial Reach On Maritime Drug–Traffickers, Andres Chinchilla

University of Miami Inter-American Law Review

46 U.S.C. § 70503, known as the Maritime Drug Law Enforcement Act (MDLEA), prohibits individuals on board covered vessels from manufacturing, distributing, or possessing with an intent to distribute or manufacture, a controlled substance. The statute, as enacted, permits the prosecution of individuals arrested beyond U.S. jurisdiction and even within the territorial seas of other States. This provision is argued to be an impermissible extraterritorial reach absent a nexus requirement—showing a connection between the drug smuggling activity and the U.S. Recently, the Eleventh Circuit Court of Appeals held the statute’s extraterritorial reach and lack of nexus requirement as unconstitutional under …

Cruise Contracts, Public Policy, And Foreign Forum Selection Clauses, John F. Coyle

University of Miami Law Review

A cruise ship contract is the prototypical contract of adhesion. The passenger is presented with the contract on a take-it-or-leave-it basis. If she refuses to sign, the ship sails without her. To ensure that cruise companies do not draft one-sided contracts that are unfair to passengers, Congress has enacted a number of statutes that regulate these agreements. One such statute is 46 U.S.C. § 30509. This law stipulates that any contract provision that limits the liability of the cruise company for personal injury or death is void as against public policy if the ship stops at a U.S. port.
In …

Informed Consent: Disclosure Of The Presentence Investigation Report Before A Guilty Plea, George D. Bell

University of Miami Law Review

The Constitution bestows upon all accused persons the right to a trial by jury, the right to confront accusers, the right to remain silent, and the right to be presumed innocent. The law requires waiver of these rights to be done voluntarily, with the fullest possible knowledge of material consequences. Punishment is possibly the most material consequence of a guilty plea, yet criminal defendants who pleaded guilty are forced to relinquish their rights before punishment is determined. Our jurisprudence of due process prohibits this kind of practice, but it is routine in Federal court. For a guilty plea to comport …

Bad Law Or Just Bad Timing?: Post-Pandemic Implications Of Managed Care Advisory Group, Llc V. Cigna Healthcare, Inc.’S Ban On The Use Of Virtual Technology For Taking Non-Party Evidence Under Section 7 Of The Federal Arbitration Act, Latoya C. Brown

University of Miami Law Review

The COVID-19 pandemic has had an enormous socio-economic impact globally. To continue operations, the legal field, like other sectors, has had to adapt to the exigencies of the pandemic by, inter alia, becoming increasingly reliant on remote technologies to conduct business. Yet, only a few months before COVID-19 was declared a pandemic, the Eleventh Circuit ruled in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), that Section 7 of the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 7, prohibits prehearing discovery and does not allow a summonsed witness to appear in locations …

Foreword, Lauren F. Louis

University of Miami Law Review

No abstract provided.

Notice: Aircraft Lien Law In Florida, Timothy M. Ravich

University of Miami Law Review

Establishing (e.g., perfecting) and enforcing a lien presents technical pitfalls and practical problems with which practitioners and courts are often unfamiliar or uncomfortable. After all, the law of liens requires an understanding of many different areas of the law, including the law of contract, bailment, unjust enrichment, and customary law. But among the most fraught with uncertainty are mechanic’s liens, which establish a right in favor of persons—“artisans”—performing or furnishing labor, services, fuel, or material upon personal property. Florida’s mechanic’s lien statute raises particularly challenging legal issues as applied to aircraft.
In Florida, the perfection and enforcement of a mechanic’s …

Does It Really Matter?: Making The Case For A Materiality Requirement In False Claims To U.S. Citizenship Under The Immigration And Nationality Act, Elizabeth Montano, Edward F. Ramos

University of Miami Law Review

Materiality plays an important role in limiting the reach of laws that penalize misrepresentations. Laws that include no materiality element punish any covered misrepresentation regardless of its relevance—like lying about hair color on a loan application. By contrast, laws that include a materiality element withhold punishment for immaterial misrepresentations of that kind—in other words, misrepresentations that have no tendency to affect the ultimate decision.
Our immigration laws make it a deportable offense for a noncitizen to “falsely represent” herself as a U.S. citizen for a purpose or benefit under the law. Although this law has been on the books for …

The Power Of Two Words To Split Circuits, Natalie Whitacre

University of Miami Law Review

28 U.S.C. § 1782 authorizes federal judges to grant assistance to a “foreign or international tribunal” for discovery proceedings. The meaning of the term “foreign or international tribunal” has been the subject of much dispute. In 2019 the Sixth Circuit became the first court of appeals to extend the purview of the statute to private commercial arbitration, creating a circuit split. However, the use of 28 U.S.C. § 1782 in arbitral proceedings raises a number of questions about whether U.S. style discovery would impede the efficiency of arbitration and whether the practice could be extended to international tribunals located within …

Advocacy Before The Eleventh Circuit: A Clerk’S Perspective, Kevin Golembiewski, Jessica Arden Ettinger

University of Miami Law Review

Appellate attorneys must tailor their advocacy to the court hearing their appeal. Each court of appeals has different jurisprudence, rules, traditions, and decision-making processes. Yet there are few articles on appellate advocacy tailored to a particular court. We wrote this article to help fill that gap. As former law clerks for the United States Court of Appeals for the Eleventh Circuit, we offer advice specifically for attorneys who practice before the Eleventh Circuit. Our advice is based on our experiences as clerks, as well as our analysis of the Eleventh Circuit’s rules, procedures, and public statistics. We offer no inside …

United States V. Esquenazi: Injecting Clarity Or Confusion Into The Foreign Corrupt Practices Act, Amy Lynn Soto

University of Miami Inter-American Law Review

The Foreign Corrupt Practices Act (FCPA) was enacted in 1977 to criminalize the bribing of foreign officials in order to obtain or retain business. In recent years, there has been an increase in bribery investigations and prosecutions by the Department of Justice (DOJ) and Securities and Exchange Commission (SEC). This increase in enforcement coexists with an ambiguity regarding the scope of the FCPA.

The scope of the FCPA hinges on the determination of who is a foreign official. The FCPA defines a foreign official as “any officer or employee of a foreign government or any department, agency, or instrumentality thereof, …