Law Commons^™

Beyond The Public Square: Imagining Digital Democracy, Mary Anne Franks

Articles

To create online spaces that do not merely replicate existing hierarchies and reinforce unequal distributions of social, economic, cultural, and political power, we must move beyond the simplistic clich6 of the unregulated public square and commit to the hard work of designing for democracy.

When we say 'public square,' ... we need to ask- who or what is this public? Who owns this space, what makes it public? . . . This is the essence of democracy: the ability to question power, and the power to do so. - Tom Wilkinson

Private Confederate Monuments, Jessica Owley, Jess Phelps, Sean W. Hughes

Articles

As public Confederate monuments finally begin to come down across the nation, we are seeing an emergence of Confederate monuments on private lands. The number of private Confederate monuments is increasing both with the construction of new monuments and, more significantly, the relocation of monuments from public land. This Article explains why private Confederate monuments are likely to be the next battleground over these controversial and troubling statues. Through ten detailed examples, we show how private Confederate monuments emerge and how communities are responding to them. The challenges related to monuments on private land are different than those on public …

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

Articles

Confederate monuments have again received increased attention in the aftermath of George Floyd's tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the "death" or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …

A Cure For Every Ill? Remedies For “Pathological” Arbitration Clauses, Harout J. Samra, Ramya Ramachanderan

University of Miami Law Review

Defective arbitration and dispute resolution clauses—widely called “pathological clauses”—may undermine parties’ intent to seek recourse to arbitration rather than the courts. Questions concerning the existence and validity of arbitration clauses are subject to state contract law despite the wide sweep of the Federal Arbitration Act. This Article examines selected common “pathologies” and reviews recent court decisions, including from the Eleventh Circuit Court of Appeals and its constituent federal district courts, concerning the enforcement of such clauses.

Which Law Is Supreme? The Interplay Between The New York Convention And The Mccarran-Ferguson Act, Brian A. Briz, César Mejía-Dueñas

University of Miami Law Review

The McCarran-Ferguson Act was enacted in 1945 to safeguard the rights of the states to regulate the business of insurance. It provides that acts of Congress not specifically related to the business of insurance are superseded by state laws that regulate the business of insurance. In 1970, the United States ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Congress enacted Chapter 2 of the Federal Arbitration Act to implement the New York Convention. The New York Convention requires courts to recognize and enforce both private agreements to arbitrate and arbitration awards made …

Federal Ignorance And The Battle For Supervised Injection Sites, Ben Longnecker

University of Miami Law Review

From 1999 to 2017, over 400,000 people have died from opioid overdoses. The federal government recognizes the opioid epidemic as a crisis, yet it has failed to slow the surge of overdose deaths. Some states are, therefore, looking at the implementation of supervised injection sites. There are over 100 supervised injection sites around the world in twelve different countries, and these sites have produced hopeful data on counteracting the opioid crisis’s negative societal effects. However, the federal government has seemingly ignored any empirical evidence and continues to threaten state-sponsored supervised injection sites with criminal prosecution. This Note argues that any …

A Matter For Interpretation: An Inquiry Into Confederate Symbolism And The Florida State Flag, Nicholas Mignanelli, Sarah C. Slinger

University of Miami Race & Social Justice Law Review

Are the red bars found on Florida’s state flag a remnant of early twentieth-century nostalgia for the Confederacy? Who first proposed this design and why? What did this change mean to the citizens who witnessed it? This Article is an attempt to answer these questions by approaching them through the lenses of original intent and original meaning. In doing so, the Authors advance new strategies for decision-makers interested in uncovering the motives of those who first erected or affixed allegedly Confederate monuments and symbols.

The Effects Of Anti-Immigrant Laws In The U.S. On Victims Of Domestic Violence, Sexual Assault, And Human Trafficking: A Gender-Based Human Rights Analysis, Caroline Bettinger-López, Jamila Flomo, Amanda Suarez

Articles

No abstract provided.

Section 1332 State Innovation Waivers: Waiving Goodbye To Cooperative Federalism And Hello To Collaborative Federalism, Brittany Hynes

University of Miami Business Law Review

No abstract provided.

Equal Protection And The Male Gaze: An Approach To New Hampshire V. Lilley, Nicholas Mignanelli

Articles

This Article uses New Hampshire v. Lilley, a case recently decided by the New Hampshire Supreme Court, as a starting point for an equal protection analysis of indecent exposure laws that distinguish between women and men. After discussing contemporary equal protection jurisprudence and historicizing these laws, this Article uses the film theorist Laura Mulvey's concept of the "male gaze" to demonstrate how overbroad generalizations about sex and sexuality serve as the foundation for this legal distinction. This Article concludes by emphasizing that municipalities and states may continue to enact and enforce indecent exposure laws that reflect community standards, so …

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to "public" monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an …

The New Agriculture: From Food Farms To Solar Farms, Jessica Owley, Amy Wilson Morris

Articles

Across the United States, government agencies and energy developers are looking to agricultural land for development of renewable energy. One attraction of agricultural lands is that they are already relatively ecologically impaired compared with the previous solar development sites in the California and Arizona desert that have been a major source of concern for many environmental groups-and subject to expensive mitigation requirements under the Endangered Species Act. Renewable energy development pressures are accelerating the existing loss of agricultural land, heightening concerns about food security and the economic viability of agricultural communities. California farmland is at the center of this conflict. …

Energy For Metropolis, Nadia B. Ahmad

University of Miami Law Review

Throughout the past decade, municipal governments have steadily increased climate change adaptation measures, natural resource conservation programs, and clean energy initiatives. Through energy efficiency measures and renewable energy mandates, cities are poised to make significant impacts in the reduction of greenhouse gas emissions and the mitigation of climate risks in the clean energy transition. This Article addresses municipal directives of advanced biofuels as an integral part of the clean energy transition. Existing laws and policies have critical design flaws. Specifically, the Renewable Fuel Standard (“RFS”) has proven to be burdensome and complex, producing more unintended consequences than desired outcomes. Problems …

Federalism, Convergence, And Divergence In Constitutional Property, Gerald S. Dickinson

University of Miami Law Review

Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the …

Habeas Won And Lost: The Eleventh Circuit’S Narrow View Of State Court Judgments, Christina M. Frohock

University of Miami Law Review

The Eleventh Circuit vacated its panel opinion in Patterson v. Secretary and reheard the case en banc. The court’s new opinion revisits the prohibition against “second or successive” habeas corpus petitions in 28 U.S.C. § 2244(b) and embraces the dissenting view in the prior opinion, rejecting the reasoning of the majority. A new state court judgment resets the habeas clock, allowing a prisoner to file an additional federal habeas petition without running afoul of section 2244(b). Previously, the court offered an expansive view of such judgments, looking to whether the state court has substantively changed the prisoner’s sentence. The court …

Florida’S Constitution Revision Commission [Crc]: Behind-The-Scenes Insights From Bob Butterworth, Florida’S Former Attorney General And Member Of The 1998 Crc, Alvan Balent Jr.

University of Miami Law Review

Once every twenty years, the Florida Constitution mandates the convening of a thirty-seven-member body that is charged with reviewing the state constitution and submitting any recommended changes to the general public for approval. This entity is formally known as the Constitution Revision Commission, and between March 2017 and May 2018, it met for the third time in Florida’s history. Eight amendments, some with multiple parts, were proposed, and if any of these proposals are approved by 60% of the voters in the November 2018 general election, they will become “the supreme law of the land” for the State of Florida.

Reassigning Cases On Remand In The Interests Of Justice, For The Enforcement Of Appellate Decisions, And For Other Reasons That Remain Unclear, Jonathan D. Colan

University of Miami Law Review

Federal appellate courts have the authority to order reassignment of cases to different district judges as part of their supervisory authority over the district courts within their circuits. This Article examines the categories of cases in which the Eleventh Circuit has ordered reassignment to different district court judges on remand and explains the rationale underlying reassignment in each category. The more understandable cases address both the appearance and the presence of bias or impropriety by the original trial judge. This Article describes the general principles underlying the Eleventh Circuit’s reassignment practices and then questions why reassignment is necessary in cases …

A Touchy Subject: The Eleventh Circuit’S Tug-Of-War Over What Constitutes Violent “Physical Force”, Conrad Kahn, Danli Song

University of Miami Law Review

No abstract provided.

Severe Brain Injury, Disability, And The Law: Achieving Justice For A Marginalized Population, Megan S. Wright, Nina Varsava, Joel Ramirez, Kyle Edwards, Nathan Gueveremont, Tamar Ezer, Joseph J. Fins

Articles

Thousands of persons with severe brain injury who are minimally conscious or "locked in" are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores …

The Value Of Cryptocurrencies: How Bitcoin Fares In The Pockets Of Federal And State Courts, Brandon M. Peck

University of Miami Business Law Review

A recent Eleventh Judicial Circuit Court of Florida decision has raised concerns over how both federal and state courts consider the unregulated cryptocurrency, Bitcoin. In State of Florida v. Michell Abner Espinoza, Judge Teresa Pooler held that Bitcoin did not fall under the statutory definitions of “payment instrument” or “monetary instrument” because virtual currency is not directly specified nor could it be included within one of the defined categories listed in Fla. Stat. § 560.103(29) or 896.101(2). Furthermore, Judge Pooler, alluding to the doctrine of lenity, refused to hold Espinoza responsible under a statute that is “so vaguely written …

Our Equity: Federalism And Chancery, Jeffrey Steven Gordon

University of Miami Law Review

Federal courts sitting in diversity cannot agree on whether state or federal law governs the award of a preliminary injunction. The conditions for the exercise of a federal diversity court’s extraordinary remedial power are anybody’s guess. The immediate cause of the confusion is Justice Frankfurter’s cryptic opinion in Guaranty Trust Co. v. York, which aggressively enforced Erie and, at the same time, preserved the so-called “equitable remedial rights” doctrine. There are, however, much broader and deeper causes that explain why the equitable remedial rights doctrine is almost incomprehensible today.

This Article argues that the early history of equity in …

How To Unlock The Voting Block: Oregon’S Sweeping Solution To Poor Voter Turnout: Automatic Registration, Gavin Rynard

University of Miami International and Comparative Law Review

No abstract provided.

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.

The Economic Loss Rule: Is A Building A “Product?” — Another View, Steve Siegfried, Erwin Gonzalez, H. Hugh (Terry) Mcconnell, Allen Bonner, James Czodli

University of Miami Law Review

This Article addresses how the Florida Supreme Court in Tiara Condominium Association v. Marsh & McLennan Cos. receded from its definition of “other property” in Casa Clara Condominium Association, Inc. v. Charley Toppino & Sons, Inc. In Casa Clara the Florida Supreme Court held that a building is to be treated as a “product” for purposes of applying the Economic Loss Rule’s bar to tort claims for defective building materials incorporated into the building. Although Casa Clara adopted the economic loss rule established by Seely v. White Motor Co. and East River Steamship Corp. v. Transamerica Delaval, Inc., …

Beyond The Great Divide: Federalism Concerns In Municipal Insolvency, Andrew B. Dawson

Articles

No abstract provided.

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 …

Hurst V. Florida’S Ha’P’Orth Of Tar: The Need To Revisit Caldwell, Clemons, And Proffitt, Craig Trocino, Chance Meyer

University of Miami Law Review

In Hurst v. Florida, the Supreme Court held Florida’s death penalty scheme violated the Sixth Amendment because judges, rather than juries, found sentencing facts necessary to impose death. That Sixth Amendment ruling has implications for Florida’s Eighth Amendment jurisprudence.

Under the Eighth Amendment rule of Caldwell v. Mississippi, capital juries must appreciate their responsibility for death sentencing. Yet, Florida has instructed juries that their fact-findings merely support sentencing recommendations, while leaving the ultimate sentencing decision to a judge. Because Hurst clarifies that the Sixth Amendment requires juries to find the operative set of facts on which sentences are …

Collaboration Between Schools And Child Welfare Agencies In Florida To Address The Educational Needs Of Children In Foster Care, Kele Stewart, Vanessa Thorrington

Articles

No abstract provided.

Better Than Bankruptcy?, Andrew B. Dawson

Articles

According to many in the bankruptcy field, small business debtors are increasingly turning to state debtor-creditors laws as an alternative to federal bankruptcy relief. One particularly popular state law is the assignment for the benefit of creditors. The conventional wisdom is that these procedures provide a state law alternative to liquidate a business.

This article reports the results of an original empirical study that challenges this conventional wisdom. Gathering data from every assignment for the benefit of creditors in a major metropolitan area over a three-year period, this study shows that debtors and their secured creditors are using these procedures …

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

Articles

No abstract provided.