Law Commons^™

The Wise Counselor: Review Of Legal Upheaval: A Guide To Creativity, Collaboration, And Innovation In Law By Michele Destefano, Honorable William G. Young

University of Miami Business Law Review

No abstract provided.

"It's Your Right…!": A Legal History Of The Bacardi Cocktail, Brian L. Frye

University of Miami Business Law Review

No abstract provided.

Evolving Autonomous Vehicle Technology And The Erosion Of Privacy, Raquel Toral

University of Miami Business Law Review

No abstract provided.

Front Matter And Table Of Contents

University of Miami Business Law Review

No abstract provided.

The Sample Solution: How Blockchain Technology Can Clarify A Divided Copyright Doctrine On Music Sampling, Angelo Massagli

University of Miami Business Law Review

This article will examine how blockchain technology can clarify the complex and inconsistent judicial approach to the copyright doctrine regarding music sampling. As it stands today, circuit courts are divided over how to handle copyright infringement stemming from unlicensed music sampling. The first approach is simple: if you want to sample, get a license. The second approach is more lenient and applies a de minimis standard that forces courts to make fact sensitive, case–by–case decisions regarding whether or not the sample of the original work is sufficient enough to be defined as an infringement. The reason for this split in …

The Rearden Problem: Defining Ownership In A Changing Landscape, Jake Altobello

University of Miami Business Law Review

This paper will address the problem that is currently being confronted by the Walt Disney World Company; who owns the creative works made from software stolen from the original creator? Furthermore, does the court’s application of the “lion’s share” theory effectively further the Constitution’s intent to promote the growth of arts and sciences? By looking at the historical progression of intellectual property law and the holdings of key cases in copyright law, this paper will distill into a summary of key concerns the jurisprudence regarding associating property rights in intellectual property. By narrowing the key considerations of the court, this …

The Howey Test: Are Crypto-Assets Investment Contracts?, Justin Henning

University of Miami Business Law Review

With innovation always comes unknowns. Blockchain technology and crypto–assets are no different. Often times, innovators are so worried about getting their product to market or scaling at mass that they overlook the legal ramifications of their innovations. As Mark Zuckerberg infamously said, “move fast and break things.” Facebook was in no way alone in this style of innovation. However, with respect to crypto–assets, the SEC has stepped in and is attempting to prevent the “break things” aspect. One of the major issues relating to crypto–assets is that many people still do not understand what they are, or how the underlying …

An Excerpt From Chapter 3 Of Legal Upheaval: A Guide To Creativity, Collaboration, And Innovation In Law, Michele Destefano

University of Miami Business Law Review

No abstract provided.

The Balkan Loophole: China's Potential Circumvention Of Eu Protectionism, Dimitrije Canic

University of Miami Business Law Review

The global recession of 2008 appeared to end the honeymoon between globalization and the reduction of international trade barriers. This was especially visible in the European Union, which saw a surge of conservatism as European economies suffered. With the EU unable to assist its members, the countries turned to China for financial aid. In return, China saw this as its chance to enter the EU using the engine of its newly–formed superpower status–its economy. From loans and financial aid to foreign direct investments (FDI), China began to pour money into the EU market. The poorer EU members accepted this money …

A Constitutional Hope: An Alternative Approach To The Right Of Privacy And Marijuana Laws Using Argentina As An Example, Kevin E. Szmuc

University of Miami International and Comparative Law Review

No abstract provided.

Domestic Law Creating International Regimes: How Legal Formalism Is Hobbling U.S. Foreign Policy, Christopher Mirasola

University of Miami International and Comparative Law Review

International law has always been contested. In recent years, however, competition between States to influence the trajectory of international law has intensified. Unfortunately, most international lawyers and policy makers still employ an impoverished understanding of the way in which international law is created (i.e., through formal international negotiations or as developed through custom). In this article, I argue that this formalist perspective neglects the foundational role of domestic lawmaking and regulation in the development of international law. Indeed, this paper shows that domestic action has historically been a direct causal antecedent to international legal regimes, and concludes that States must …

The Durand Line: Analysis Of The Legal Status Of The Disputed Afghanistan-Pakistan Frontier, Bijan Omrani

University of Miami International and Comparative Law Review

No abstract provided.

Crimes Against Humanity In Venezuela: Can The Icc Bring Justice To Venezuelan Victims?, Ayumary M. Fitzgerald

University of Miami International and Comparative Law Review

State parties to the Rome Statute submit to the jurisdiction of the International Criminal Court (ICC). This permanent and autonomous Court tries individuals for heinous international crimes, including crimes against humanity (CAH). Crimes such as murder, imprisonment, or torture, when committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of the attack, are known as CAH. Under the Statute, national jurisdictions are primarily responsible for investigating and prosecuting those responsible for international crimes. So, before it can assert jurisdiction, the ICC must determine that a state party is unwilling or unable to prosecute …

Enabling Retrospective Application Of The Denial Of Benefits Clause: An Analysis Of Decisions Of Tribunals Under The Energy Charter Treaty, Ramya Ramachanderan

University of Miami International and Comparative Law Review

No abstract provided.

A Genealogy Of Programmatic Stop And Frisk: The Discourse-To-Practice-Circuit, Frank Rudy Cooper

University of Miami Law Review

President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. This Article contributes to the field by identifying, defining, and discussing five key components of the practice: (1) administratively dictated (2) pervasive Terry v. Ohio stops and frisks (3) aimed at crime prevention by means of (4) data-enhanced profiles of suspects that (5) target young racial minority men.

Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this Article argues for understanding how we arrived at specific police practices by analyzing three levels …

Mitochondrial Replacement Therapy: How A Government For The People, Failed The People, Jeffery Mark Sauer

University of Miami Law Review

Despite having the potential to significantly reduce the passage of many lethal diseases and devastating birth defects, mitochondrial replacement therapy—a controversial medical procedure in which mitochondrial RNA from a healthy female replaces the mitochondrial RNA from the intended mother in vitro—will have no place in the United States anytime soon. Under the guise of purported safety concerns and ethical dilemmas, the Republican Congress used its “power of the purse” to halt any and all research furthering mitochondrial replacement therapy, notwithstanding the fact that many leaders in the medical community have advocated for further research. Several developed countries have already implemented …

Tax Reform On Homeownership, Margaret Ryznar

University of Miami Law Review

The 2017 tax reform, by curtailing the deductions for mortgage interest and state and local taxes, frustrates the American public policy of encouraging homeownership. Yet, there are many reasons that public policy has encouraged homeownership for decades. Most importantly, homeownership is an important savings tool for Americans—and tax reform should be mindful of it.

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 …

The Bring Your Own Tampon Policy: Why Menstrual Hygiene Products Should Be Provided For Free In Restrooms, Elizabeth Montano

University of Miami Law Review

Like toilet paper, menstrual hygiene products, such as tampons and pads, are necessities for managing natural and unavoidable bodily functions. However, menstrual hygiene products widely receive separate treatment in restrooms across the globe. While it would be absurd today to carry a roll of toilet paper at all times, it is considered necessary and common sense for all menstruators to carry menstrual hygiene products at all times, for approximately forty years, in case of an emergency. This is the “Bring Your Own Tampon” (“BYOT”) policy and it is a violation of human rights and equal protection.

This Note seeks to …

After Life: Governmental Interests And The New Antiabortion Incrementalism, Mary Ziegler

University of Miami Law Review

In the aftermath of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, commentators have focused on the effect of antiabortion restrictions. But as this Article shows, Whole Woman’s Health is part of the story of an equally important tactic used by those chipping away at abortion rights: the recognition of new governmental interests justifying abortion regulations. Using original archival research, this Article traces the rise of this strategy and documents its influence on Supreme Court doctrine, making sense of what seem to be contradictory rulings on abortion.

How should courts deal with novel legislative purposes or broader …

U.N. Sovereign Immunity: Using The Haitian Experience To Transition From Absolute To Qualified Immunity, Brianna Sainte

University of Miami Law Review

The United Nations (“U.N.”) has been looked at globally and historically as an international organization that has given aid to millions of people in the hopes of promoting peace and reducing human rights violations. It is no surprise then that many countries have welcomed U.N. troops with open arms in the hopes of stabilizing communities. However, instead of receiving aid, imagine receiving a deadly disease. Imagine having the nearby river that has been your only source of water for drinking, laundry, and bathing for decades turned into a waste dump. It is from that river turned waste dump that you—and …

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 …

The Invisible Voices Of The Movement To End Violence Against Women: Immigrant Survivors With Criminal Convictions, Leoni Fred

University of Miami Race & Social Justice Law Review

No abstract provided.

Front Matter And Table Of Contents

University of Miami Race & Social Justice Law Review

No abstract provided.

Juvenile Status Offenses: The Prejudicial Underpinnings Of The Juvenile Justice System, Zachary Auspitz

University of Miami Race & Social Justice Law Review

No abstract provided.

A Monumental Undertaking – Tackling Vestiges Of The Confederacy In The Florida Landscape, Juanita Solis

University of Miami Race & Social Justice Law Review

Symbols of the Confederacy have been a volatile topic across the country as recent events have spurred new resistance to their display. Part I of this note provides a brief introduction into the current controversy surrounding Confederate monuments in the United States, with a particular emphasis on the erected memorials in the Florida landscape. Part II argues that Confederate monuments were mainly erected with the intention of advancing racial subordination during time periods in American history where black Americans resisted white supremacy. As shown by the events that followed right–wing violence in both South Carolina and Virginia, this note argues …

The Future Of Tort Litigation For Undocumented Immigrants In Donald Trump’S “Great” America, Dina Lexine Sarver

University of Miami Race & Social Justice Law Review

No abstract provided.

The Legacy Of Slavery, Cognitive Shortcuts, And Biased News: The Mass Media’S Vilification Of Black Males And The Resulting “Reasonableness” Of Excessive Force By Law Enforcement, Janyl Relling Smith

University of Miami Race & Social Justice Law Review

No abstract provided.

Compelled Commercial Disclosures: Zauderer’S Application To Non-Misleading Commercial Speech, Alexis Mason

University of Miami Law Review

In 1980, the Supreme Court held that a prohibition on commercial speech is subject to intermediate scrutiny. Roughly five years later, in Zauderer, the Court provided guidance on specific instances in which the government may compel commercial speech. The Court held that a requirement that goods or services disclose “factual and uncontroversial” information is constitutional so long as the requirement is not unduly burdensome, and the requirement is “reasonably related to the State’s interest in preventing deception of consumers.” This holding applied a rational basis standard of review to compelled commercial speech aimed at curing deception of consumers.

Despite …

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 …