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University of Miami International and Comparative Law Review

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University of Miami International and Comparative Law Review

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Hungary, Poland, And Access To Eu Funding: The Eu Charts A New Course Under The Necessity Of Legislation, Conditionality, And The Rule Of Law., Blake S. Rutherford

University of Miami International and Comparative Law Review

In recent years, there has been considerable backsliding in Hungary and Poland regarding the rule of law, media plurality, judicial independence, and emergency powers. In response, the European Union (“EU”) exercised its authority under Article 7 of the Treaty of the Functioning of the European Union to withhold COVID-19 relief funds in an effort to compel these nations to realign with EU principles. This article examines the history, consequence, and legal effect of the landmark decision, Hungary v. Parliament and Council. It argues that the EU was on sound legal footing to utilize money as a means to protect …

Emergency Powers: Understanding The Benefits While Mitigating The Consequences, Savannah Valentine

University of Miami International and Comparative Law Review

This note compares the short-term benefits and long-term consequences of emergency powers using examples from several countries and offers solutions to mitigate those consequences. Historically, emergency powers were only granted in times of true crises. In those circumstances, emergency powers can serve an important purpose: to help the government run smoothly and efficiently. Unfortunately, permanent power grabs are now more common and the standard for what constitutes an emergency has weakened severely, often resulting in civil rights infringements. Possible solutions to this problem include understanding the negative effects of sunset clauses in emergency acts, increased awareness of manufactured emergencies, encouraging …

Compassion Fatigue In An Infodemic: A Physician’S Duty To Treat In The Age Of Misinformation, Alessandra Perez

University of Miami International and Comparative Law Review

This Note considers how misinformation has exacerbated the COVID-19 pandemic and the inevitable burden it has placed on the healthcare industry. It explores the intersection between a doctor’s oath of ethics and their right to refuse care by uncovering the obligations that guide their decisions. Justice dictates that physicians provide care to all who seek it, and it is unconstitutional for a physician to refuse to treat patients based on race, ethnicity, gender, religion, or sexual orientation. Even if a patient’s request is antithetical to a physician’s personal beliefs, the unwavering duty to treat generally mandates that physicians treat any …

“Take The Motherless Children Off The Street”: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo

University of Miami Law Review

Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome dis- order (“FASD”) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. In this Article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts in cases involving defendants with FASD and consider adequacy of counsel. Next, we will discuss the impact of FASD on the …

Advancing America’S Emblematic Right: Doctrinal Bases For The Fundamental Constitutional Right To Vote Per Se, Susan H. Bitensky

University of Miami Law Review

This Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude …

A Muddy Mess: The Supreme Court’S Jurisprudence On Jurisdiction For Arbitration Matters, Kristen M. Blankley

University of Miami Law Review

The Supreme Court’s 2022 Badgerow v. Waters decision at- tempts to create a bright-line rule regarding access to federal courts to hear arbitration matters. On its face, the Badgerow majority opinion reads like a straightforward exercise in textualism. Badgerow interpreted the judicial test for jurisdiction under the Federal Arbitration Act (“FAA”) provision regarding vacatur differently than it interpreted the jurisdictional test for a motion to compel under a different part of the statute. However, Badgerow leaves courts, which were already struggling to decipher the Supreme Court’s 2009 decision of Vaden v. Discover Bank, with a significant number of outstanding questions. …

Cosmetic Crisis: The Obsolete Regulatory Framework Of The Ever-Evolving Cosmetic Industry, Isabelle M. Carbajales

University of Miami Law Review

Cosmetics only first became regulated after a series of tragic events where users were seriously harmed from the use of cosmetic products. These tragic events prompted legislators to enact the Food, Drug, and Cosmetics Act of 1938. Before then, law makers feared that regulating the cosmetic industry would lower the tone of legislation because they considered the cosmetic industry to be inconsequential. At present, the regulatory system in place to protect vulnerable cosmetic consumers is nearly identical to when it was enacted over eighty-six years ago—even though the cosmetic market looks nothing like it did back then. The consumer base …

“A Solemn Mockery”: Why Texas’S Senate Bill 8 Cannot Be Legitimized Through Comparisons To Qui Tam And Environmental Protection Statutes, Laura Blockman

University of Miami Law Review

On September 1, 2021, the Texas Legislature enacted the Texas Heartbeat Act, an anti-abortion statute popularly known as Senate Bill 8 (“S.B. 8”). Although many states passed anti-abortion legislation in 2021, S.B. 8 received national attention due to the law’s unusual enforcement mechanism: S.B. 8 empowers private citizens, not state actors, to sue individuals who perform or aid in the performance of an abortion after a fetal heartbeat is detected.

Unsurprisingly, the authors of S.B. 8 received extreme back- lash from the public, and many academics and legal scholars viewed the law’s private enforcement mechanism as an effort to evade …

Operation Nation-Building: How International Humanitarian Law Left Afghanistan Open On The Operating Table, Nina Griscelli

University of Miami Law Review

Military campaigns often carry with them official names and underpinning objectives. In Afghanistan, these campaigns were known as Operation Enduring Freedom in 2001, and later, in 2015, as Operation Freedom Sentinel. In total, the United States and its allies remained in Afghan territory for 7,268 days, twenty years, in support of the “Global War on Terror.” Within that time, the democratic construction of a “free” Afghan society—also known as nation-building, regime change, or transformative military occupation—deeply transformed the status quo of the population. To the West, “Operation Nation-Building” became the most strategic and “hopeful alternative to the vision of the …

Detinue And Replevin: Arresting Children To Enforce Private Parenting Orders In New Zealand Family Court, Carrie Leonetti

University of Miami International and Comparative Law Review

This Article argues that the seizures of children authorized by the New Zealand Care of Children Act to enforce private custody orders are unlawful and unjustifiable arrests. These seizures lack in either the substantive limitations of necessity or the procedural protections that should attach to such an intrusive and violent restriction on children’s liberty. It argues that their issuance violates children’s rights under the New Zealand Bill of Rights Act 1990 and international human rights law. It canvasses the history of these arrest provisions and argues that they function as a mechanism for detinue and replevin of children, harkening back …

Markets, Regulation, And Inevitability: The Case For Property Rights In Outer Space, Eliot T. Tracz

University of Miami International and Comparative Law Review

In 1967, a number of countries—including the United States— entered into the Outer Space Treaty. This treaty established the fundamental rules by which countries are to conduct themselves in outer space. At the time, there was more concern about the possibility of the Cold War, and thus nuclear weaponry, extending into space and very little consideration of commercial activity, which was largely the province of Science Fiction. Today, commercialization of space includes satellites, private companies contracting for government work, space tourism, and the early stages of testing materials for resource extraction. Interestingly, no international system for the recognition of property …

What The United States Could Learn From Norway: Training Police Officers To Be Social Workers, Not Warriors, Liana Brown

University of Miami International and Comparative Law Review

This note compares the training of police officers and its consequential effects in the United States versus that of Norway. In the United States, the lack of national training standards, in conjunction with an emphasis on technical skills and weaponry, has further perpetuated the “Warrior mindset.” The “Warrior mindset” reflects the rhetoric that officers are akin to combatants in a war, in which they have a duty to safeguard the rest of civilization against criminals that can strike at any moment. Contrastingly, the training programs for police officers in Norway include a consolidated and robust three-year education program that emphasizes …

Rising Tide: The Second Wave Of Climate Torts, Maximillian Scott Matiauda

University of Miami International and Comparative Law Review

Fossil fuels and tobacco products share startling similarities. Both enjoy ubiquity, enable their users to keep pace with the ever-increasing demands of civilization, and choke the life out of those who partake and those who merely look on. The comparison extends to legal battles against their respective industries, as evidenced by a new wave of tort litigation in the federal courts of the United States. In a time where climate change was still establishing consensus, states took up the charge against tobacco companies who had successfully defended against private lawsuits over the deleterious health effects of tobacco. Those suits culminated …

Overseas Primary Listing: U.S. Stock Markets As A Global Hub For Ipos?, Carlos Ragazzo, Rafael Costa

University of Miami Business Law Review

Between 2007 and 2021, several South American companies carried out IPOs outside their home countries, with the subsequent overseas primary listing of their shares on U.S. stock exchanges. The acceleration of this trend from January 2018 (with the IPO of PagSeguro Digital Ltd. on the New York Stock Exchange—NYSE) is not explained solely by the possibility of adopting dual-class shares structure for companies listed on U.S. stock exchanges. In this sense, factors such as: (1) biases and subjectivities in the decision-making process; (2) cultural proximity and history of successful precedents; (3) better valuation in comparison with local markets; and (4) …

Taking Care Of Business: An Empirical Examination Of The Top S&P 500 Companies And Their Role As Public Health Regulators During The Covid-19 Pandemic, Megan M. O’Malley

University of Miami Business Law Review

Data from the top 15 constituents by weight on the S&P 500 is assembled to identify trends among the policies these companies implemented in the United States during the COVID-19 pandemic. Some policies were fairly consistent across the board, especially in regard to remote work opportunities and health and safety measures for essential and/or in-person employees. Other policies, including vaccination requirements and vaccine incentives, varied across and within industries. Some companies that were examined went beyond the relevant federal, state, or local requirements in effect at the time, while other companies pushed back against public health guidance.

The Power Of The Purse: Instigating Social Change Through Strategic Municipal Bond Investments, Jenna Reifler

University of Miami Business Law Review

Municipal bonds are generally understood as mutually beneficial for both issuer and holder—they allow cities to secure capital for local improvements and investors to earn reliable and tax-exempt profits. It turns out, however, that the lack of disclosure for issuing general obligation bonds presents the perfect camouflage for cities to secure funding despite their local social responsibility inadequacies.

Cities quietly shell out millions of dollars in settlements to the victims of police-misconduct. Largely unreported and untracked, many municipalities fund such settlements through general obligation bonds, which are colloquially termed police brutality bonds. As a result, and often unbeknownst to the …

The Afterlife Of Confederate Monuments, Jessica Owley, Jess Phelps

Articles

As communities increasingly remove Confederate monuments from public spaces, they must decide what to do with these troubled statues. Given the recent wave of monument removal, we consider how property law and other restrictions impact community decisions on the disposition of monuments removed from public spaces on two levels by location and future owner. In considering the fate of removed monuments, we profile potential destinations including museums, battlefields, cemeteries, and even storage. Alongside these examples, we discuss how laws constrain (or fail to constrain) the options for new owners and the restrictions on where monuments can be relocated. Even where …

Chevron: Fueling The Right Against Title 42 And The Denial Of U.S. Asylum Rights, Nicholas Pierre-Paul

University of Miami Inter-American Law Review

This Note was inspired by the questionable treatment of Haitian asylum seekers in Del Rio, Texas, where horseback U.S. officials charged at them using reins as whips, before immediately deporting them back to Haiti. The U.S. government justified its actions by claiming that Title 42 permits U.S. officials to prohibit the entry of individuals when there is a danger of introducing certain diseases, such as COVID-19. However, Title 42 conflicts with the United States’ codified commitment to the principle of non-refoulment, prohibiting it from returning certain refugees to a country where their life or freedom would be threatened. Accordingly, the …

Gender Violence As A Penalty Of Poverty, Deborah M. Weissman

University of Miami Inter-American Law Review

The matter of gender violence, including intimate partner violence (IPV), has long been categorized as a particularly egregious crime. The consequences of IPV are profound and affect all members of the household, family members near and far, and the communities where they live. Gender violence impacts the national economy. Costs accrue to workplaces, health care institutions, and encumber local and state coffers. Survivors are deprived of income, property, and economic stability: conditions that often endure beyond periods of physical injuries. Offenders also experience economic hardship as a result of involvement with the legal system. They often face significant obstacles when …

Is There Force In Force Majeure After Covid-19 Or In The Freedom To Negotiate Risk?, Sara Lazarevic

University of Miami Inter-American Law Review

This note explores the impact COVID–19 has had on contracting parties who have attempted to implicate force majeure provisions. An inquiry of recent cases reveals varying degrees of success and tension when parties turn towards force majeure text. This Note analyzes common law alternatives, discusses the implication of force majeure clauses as applied under Mexican and American law, highlights the implications that have played out in recent court decisions, and discusses post–pandemic implications that could affect how parties conduct cross–border transactions in the future.

Gender Mainstreaming At The European Court Of Human Rights: The Need For A Coherent Strategy In Approaching Cases Of Violence Against Women And Domestic Violence, Joanna Evans

University of Miami Inter-American Law Review

Any assessment of the jurisprudence of the European Court of Human Right’s (ECtHR) in the field of violence against women and domestic violence must start with an acknowledgement of the ECtHR’s landmark judgments in this area and the positive practical impact those judgments have had upon the protection of women.

However, much progress is still to be made. This article analyses three ECtHR cases from Russia and Georgia, and in so doing, highlights the need for greater transparency, proactivity, and coherency on the part of the Court. It considers in turn: a) the seemingly discriminatory impact of the ECtHR’s approach …

Mitigating Zoonotic Disease Threats To Prevent Future Pandemics: A Critical Analysis Of Policy Favoring The Closures Of Wildlife Markets In Latin America, Melany J. Danielson

University of Miami Inter-American Law Review

The Preventing Future Pandemics Act was introduced to mitigate zoonotic disease threats around the world by focusing policy efforts on the closure of wildlife markets that gave rise to COVID–19. This Note challenges the efficacy of wildlife market closure policy by considering cultural, socioeconomic, and legal factors for the existence of wildlife market within megadiverse countries in Latin America. Based on scientific research on the animal-to-human interface and zoonotic disease transmission, this Note suggests effective policy should incorporate a targeted species ban for reservoir species, improved sanitary measures and disease surveillance, and wildlife trafficking prevention. Ultimately, this Note calls for …

Sanchez V. Mayorkas: Is This The End Of Green Cards For Temporary Protected Status Holders?, Thalia G. Rivet

University of Miami Inter-American Law Review

This Note was inspired by the U.S. Supreme Court’s decision in Sanchez v. Mayorkas. This decision put an end to the decade-long circuit split over whether a Temporary Protected Status (“TPS”) recipient, who entered the United States unlawfully, could still become a Lawful Permanent Resident (“LPR”). Since its inception, TPS holders have been denied an avenue to adjust their status despite their socioeconomic impact on the United States and every TPS-designated country. This Note will break down and analyze the decision in Sanchez v. Mayorkas through (1) the examination of the circuit split cases, (2) the analysis of TPS holder’s …

Hard Truths: Cracking Open The Case Of Whether Hard Seltzer Is Beer, Scott Fraser

University of Miami Law Review

Following the line of cases asking questions such as what is a chicken, and is a burrito a sandwich, comes the next deep legal issue, what is beer? How do we determine this seemingly simple question? Do we simply know it when we see (or taste) it? Does it require a mix of specific ingredients or certain processes? Or, if we should rely on definitions, do we look to the dictionary, history, or statutes? In a dispute in the United States District Court for the Southern District of New York, the court is asked to resolve this question. Courts have …

The Freedom Of Influencing, Hannibal Travis

University of Miami Law Review

Social media stars and the Federal Trade Commission (“FTC”) Act are clashing. Influencer marketing is a preferred way for entertainers, pundits, and everyday people to monetize their audiences and popularity. Manufacturers, service providers, retailers, and advertising agencies leverage influencers to reach into millions or even billions of consumer devices, capturing minutes or seconds of the market’s fleeting attention. FTC enforcement actions and private lawsuits have targeted influencers for failing to disclose the nature of a sponsorship relationship with a manufacturer, marketer, or service provider. Such a failure to disclose payments prominently is very common in Hollywood films and on radio …

Standing Up To Hackers: Article Iii Standing For Victims Of Data Breaches, Kendall Coffey

University of Miami Law Review

Despite the increasing amount of data breaches, there is no liability for parties who do not adequately protect victim’s information. In federal court, plaintiffs must show that their injury was concrete, particularized, and imminent. But, when plaintiffs’ information has been stolen, but not yet criminally used, they may be unable to establish a right to relief. Victims face challenges when seeking damage for this future harm, because despite their destroyed privacy, they may not have evidence of a perpetrator’s actual misuse of purloined data. This Article analyzes multiple court decisions, generally in the setting of class-actions, and discusses outcomes of …

The Microsoft Litigation’S Lessons For United States V. Google, John E. Lopatka, William H. Page

University of Miami Law Review

The United States Department of Justice (“DOJ”) and three overlapping groups of states have filed federal antitrust cases alleging Google has monopolized internet search, search advertising, internet advertising technologies, and app distribution on Android phones. In this Article, we focus on the DOJ’s claims that Google has used contracts with tech firms that distribute Google’s search services in order to exclude rival search providers and thus to monopolize the markets for search and search advertising—the two sides of Google’s search platform. The primary mechanisms of exclusion, according to the DOJ, are the many contracts Google has used to secure its …

Condominium Law: How Florida Must Continue To Adapt In The Wake Of The Champlain Towers South Collapse, Austin Price

University of Miami Law Review

Condominiums represent a large portion of the housing inventory throughout the state of Florida. However, until recently, the maintenance of condominium buildings was left largely unregulated in most areas of the state. Only two counties, Broward and Miami-Dade, had inspection protocols in place, but each was limited in scope and allowed for long periods between inspections. Beyond those regulations, Florida law also gave residents the power to waive reserves even for the most important building components. After the tragic events that took place at Champlain Towers South, the state of Florida made great strides in improving the existing procedures by …