Law Commons^™

@Potus: Rethinking Presidential Immunity In The Time Of Twitter, Douglas B. Mckechnie

University of Miami Law Review

President Donald Trump’s use of Twitter portends a turning point in presidential communication. His Tweets animate his base and enrage his opponents. Tweets, however, like any form of communication, can ruin reputations. In Nixon v. Fitzgerald, the Supreme Court determined that a president retains absolute immunity for all actions that fall within the “outer perimeter” of his official duties. This Article explores the “outer perimeter” of presidential immunity. It suggests the First, Fifth, and Fourteenth Amendments inform the demarcation of the “outer perimeter,” and that when a president engages in malicious defamation, his speech falls outside this perimeter and …

Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso

University of Miami Law Review

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers’ and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers’ and ratifiers’ intent or action.

What is often unappreciated in addressing the question of whether to adopt an originalist or non-originalist approach to constitutional interpretation is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living …

Striking A Balance Between The Paramount Importance Of The Safety Of Children And Constitutionally-Imposed Limits On State Power, Lindsey Lazopoulos Friedman

University of Miami Law Review

No abstract provided.

Fitting A Gun In A Circle–A How-To Guide: A Comprehensive Look At The Standard Of Review For Gun Regulations Under The Second Amendment, Beth Coplowitz

University of Miami Law Review

In District of Columbia v. Heller, the Supreme Court’s landmark Second Amendment case, the Court held that the right to bear arms is an individual right aimed at self-defense in the home. Two years later, McDonald v. City of Chicago extended this right to the states through the Fourteenth Amendment. However, lower courts were left with little guidance on what level of scrutiny to apply to gun regulations. As a result, courts have applied various levels of scrutiny including intermediate scrutiny, strict scrutiny, a two-step inquiry that leads to either intermediate or strict scrutiny, and an undue burden standard. Of …

Habeas As Forum Allocation: A New Synthesis, Carlos M. Vázquez

University of Miami Law Review

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question—one of recognized significance for contemporary debates about the proper scope of habeas review. This Article provides a new answer. It argues that, until the enactment of Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), it was broadly accepted that state prisoners were entitled to plenary federal review of the legal and mixed law/fact questions decided against them by state courts. Until 1916, such review was provided by the Supreme Court; after 1953, …

Keynote Address, Justice John Paul Stevens (Ret.)

University of Miami Law Review

No abstract provided.

Doe V. University Of Michigan: Free Speech On Campus 25 Years Later, Len Niehoff

University of Miami Law Review

No abstract provided.

Triggering Tinker: Student Speech In The Age Of Cyberharassment, Ari Ezra Waldman

University of Miami Law Review

This essay challenges the common assumption that public schools have limited authority to regulate cyberbullying that originates and takes place off campus. That argument presumes a level of myopia, clarity, and literalism in the law that simply does not exist. First, even assuming it existed, a geographic requirement is an outdated creature of a pre-Internet age. Cyberbullying poses unique challenges to young people, educators, and schools not contemplated when the Court decided its student speech cases. Second, I argue that a campus presence requirement for regulating any kind of off-campus cyberspeech never really existed, so any suggestion to the contrary …

The Limits Of Education Purpose Limitations, Elana Zeide

University of Miami Law Review

While student privacy has been a public issue for half a century, its contours change in response to social norms, technological capabilities, and political ideologies. The Family Educational Rights and Privacy Act (FERPA) seeks to prevent inaccurate or inappropriate information about students from being incorporated into pedagogical, academic, and employment decisionmaking. It does so by con- trolling who can access education records and, broadly, for what purposes.

New education technologies take advantage of cloud computing and big data analytics to collect and share an unprecedented amount of information about students in class- rooms. Schools rely on outside, often for-profit, entities …

Combatting Institutional Censorship Of College Journalists: The Need For A "Tailored Public Forum" Category To Best Protect Subsidized Student Newspapers, Nicole Comparato

University of Miami Law Review

College journalists are in a unique position. On one hand, they are typical college students, attending classes and cheering on the team at all the big games. On the other, they serve as investigative journalists, revealing the university’s deepest flaws on the front page of their newspaper. These roles should not be mutually exclusive, but at an alarming rate, universities are attempting to rid themselves of bad press by censoring their own campus newspapers.

This Note argues that universities can get away with this because of the current structure of the public forum doctrine. This doctrine determines the extent to …

Censorship By Crying Wolf: Misclassifying Student Speech As Threats, Susan Kruth

University of Miami Law Review

Freedom of expression is at risk at colleges and universities across the country. While campus administrators employ a number of strategies to censor speech they disfavor, this piece explores the trend of justifying censorship and punishment of expression by labeling it a “threat” and citing concerns about safety. In contrast to the kind of speech the Supreme Court has defined as a “true threat,” the expression at issue in the cases discussed here poses no safety risk, comprising political commentary, jokes, and pop culture references. Its punishment both trivializes actual dangers and chills campus discourse. Accordingly, it is imperative that …

A Critical Look At How Top Colleges Are Adjudicating Sexual Assault, Tamara Rice Lave

University of Miami Law Review

This Article examines the procedural protections afforded by the top American colleges and universities. After briefly situating these policies historically, it presents original research on the procedural protections provided by the top twenty universities, top ten liberal arts colleges, and top five historically black colleges as ranked by U.S. News and World Reports. In 2015, university administrators were contacted and asked a series of questions about the rights afforded to students, including the standard of proof, right to an adjudicatory hearing, right to confront and cross-examine witnesses, right to counsel, right to silence, and right to appeal. This Article describes …

Liberty At The Cost Of Constitutional Protections: Undocumented Immigrants And Fourth Amendment Rights, Linet Suárez

University of Miami Inter-American Law Review

The Supreme Court has issued many opinions indirectly addressing the Fourth amendment rights of undocumented immigrants. However, none of these opinions answer the questions that matter most: do undocumented immigrants have Fourth Amendment protections and if so, what are they. These questions have increasingly become more important because advances in technology facilitate intrusive searches and seizures by law enforcement officers. This article will specifically focus on the Department of Homeland Security and its use of GPS ankle bracelets to monitor undocumented immigrants. This article compares existing Supreme Court opinions concerning undocumented immigrants and Fourth Amendment rights in the technological age. …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Articles

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …