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University of Miami Law School

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Full-Text Articles in Law

Trade's Security Exceptionalism, Kathleen Claussen Jan 2020

Trade's Security Exceptionalism, Kathleen Claussen

Articles

At the core of U.S. trade law is an under-studied structural dichotomy. On the one hand, well-established statutory authorities enable the President to eliminate trade barriers through negotiations with U.S. trading partners. On the other hand, different, lesser-known authorities allow the President to erect trade barriers on an exceptional basis where necessary for U.S. economic security. Rather than thinking of free trade as a source of or tool for economic security as political theorists long have, our law codifies these authorities as though they are in contrast to one another-allowing departures from the free trade norm when ...


The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin Jan 2020

The Supreme Court's Facilitation Of White Christian Nationalism, Caroline Mala Corbin

Articles

Doug Jager, a band student of Native-American ancestry, complained about the Christian prayers at his Georgia public school’s football games. Rather than address his concerns, the school lectured him on Christianity and proposed an alternative that appeared neutral yet would result in the continuation of the Christian prayers. In striking down the school’s proposal, Judge Frank M. Johnson Jr. understood some of the ramifications of state-sponsored Christianity.

Despite Supreme Court rulings limiting Christian invocations at public-school events, government-sponsored Christian prayers and Christian symbols remain plentiful in the United States. This proliferation of government-sponsored Christianity around the country both ...


Media Literacy Beyond The National Security Frame, Lili Levi Jan 2020

Media Literacy Beyond The National Security Frame, Lili Levi

Articles

No abstract provided.


Identity: Obstacles And Openings, Osamudia R. James Jan 2020

Identity: Obstacles And Openings, Osamudia R. James

Articles

Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward "identity politics," the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims.


The Commonality Of Causation, Sergio J. Campos Jan 2020

The Commonality Of Causation, Sergio J. Campos

Articles

This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School ofLaw, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a claim because it is dependent on the circumstances of each individual claimant. Even if the conduct at issue in litigation is "common, " or the same, for a group of claimants, whether that conduct caused harm to a specific claimant will depend on the unique circumstances of that ...


The State Qui Tam To Enforce Employment Law, Andrew Elmore Jan 2020

The State Qui Tam To Enforce Employment Law, Andrew Elmore

Articles

No abstract provided.


In Times Of Chaos: Creating Blueprints For Law School Responses To Natural Disasters, Jeffrey Baker, Christine Cerniglia, Davida Finger, Luz Herrera, Jonel Newman Jan 2020

In Times Of Chaos: Creating Blueprints For Law School Responses To Natural Disasters, Jeffrey Baker, Christine Cerniglia, Davida Finger, Luz Herrera, Jonel Newman

Articles

No abstract provided.


The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby Jan 2020

The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby

Articles

No abstract provided.


The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby Jan 2020

The Court And The Suspect: Human Frailty, The Calculating Criminal, And The Penitent In The Interrogation Room, Scott E. Sundby

Articles

No abstract provided.


Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich Jan 2020

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Articles

No abstract provided.


Theater And Revolution In Clinical Legal Education, Jonel Newman, Fergus Lawrie, Donald Nicolson, Melissa Swain Jan 2020

Theater And Revolution In Clinical Legal Education, Jonel Newman, Fergus Lawrie, Donald Nicolson, Melissa Swain

Articles

Why does a revolutionary theatre method developed in the 1960s and 1970s by Brazilian intellectual and activist Augusto Boal belong in clinical legal education? Use of the transformative Forum Theatre method can greatly enhance legal education. Boal, a colleague and disciple of Paulo Freire (Pedagogy of the Oppressed), developed Forum Theatre as a democratic, participatory, and collaborative production between the actors and the audience, to revolutionize traditional sit-and-watch theatre. Spectators in the audience become spect-actors, halt the oppressive element in a scenario, take the place of the actors, and eliminate oppression. The over-arching goal of Forum Theatre is to illuminate ...


Antitrust In Attention Markets: Objections And Responses, John M. Newman Jan 2020

Antitrust In Attention Markets: Objections And Responses, John M. Newman

Articles

The modern antitrust enterprise finds itself under attack. Critics complain that enforcement agencies have done nothing to stem an ever-rising tide of market concentration and corporate power. At the center of this critique lies Silicon Valley, home of a new generation of tech giants.

This symposium contribution contends that attention markets represent the largest sector of the modern economy to have gone unnoticed by antitrust regulators. If it is to fulfill its congressional mandate, the antitrust enterprise must begin paying attention to attention markets. A number of objections to this straightforward point have been raised, but each collapses under close ...


How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law, Glenn R. Butterton Jan 2019

How Neuroscience Technology Is Changing Our Understanding Of Brain Injury, Vegetative States And The Law, Glenn R. Butterton

Articles

The author examines clinical studies that use neuroscience technology to study patients in Vegetative States. The studies indicate that some of the patients are, in fact, conscious. The author suggests that this finding is a matter of considerable practical importance for the drafting and execution of end-of-life protocols such as Advance Directives and Living Wills. He recommends that statutes, and other guidance used by patients, caregivers, medical institutions, family members and others to draft and interpret such Directives and Wills, be revised or amended to take account of these results.


"Scientific Inference" Vs. "Legal Reasoning"? Not So Fast! ¿"Inferencia Cientifíca" Vs."Razonamiento Jurídico"? -- No Tan Rápido!, Susan Haack Jan 2019

"Scientific Inference" Vs. "Legal Reasoning"? Not So Fast! ¿"Inferencia Cientifíca" Vs."Razonamiento Jurídico"? -- No Tan Rápido!, Susan Haack

Articles

No abstract provided.


The Uncertain Path Of Class Action Law, Sergio J. Campos Jan 2019

The Uncertain Path Of Class Action Law, Sergio J. Campos

Articles

For the past ten terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This "exceptional" view of the class action has had a profound impact not only on class action law, but on procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases that support an alternative, 'functional" view of the class action, one that does not view ...


Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler Jan 2019

Unlocking Access To Health Care: A Federalist Approach To Reforming Occupational Licensing, Gabriel Scheffler

Articles

No abstract provided.


Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler Jan 2019

Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler

Articles

No abstract provided.


When Ais Outperform Doctors: Confronting The Challenges Of A Tort-Induced Over-Reliance On Machine Learning, A. Michael Froomkin, Ian Kerr, Joelle Pineau Jan 2019

When Ais Outperform Doctors: Confronting The Challenges Of A Tort-Induced Over-Reliance On Machine Learning, A. Michael Froomkin, Ian Kerr, Joelle Pineau

Articles

Someday, perhaps soon, diagnostics generated by machine learning (ML) will have demonstrably better success rates than those generated by human doctors. What will the dominance of ML diagnostics mean for medical malpractice law, for the future of medical service provision, for the demand for certain kinds of doctors, and in the long run for the quality of medical diagnostics itself?

This Article argues that once ML diagnosticians, such as those based on neural networks, are shown to be superior, existing medical malpractice law will require superior ML-generated medical diagnostics as the standard of care in clinical settings. Further, unless implemented ...


Black, Poor, And Gone: Civil Rights Law’S Inner-City Crisis, Anthony V. Alfieri Jan 2019

Black, Poor, And Gone: Civil Rights Law’S Inner-City Crisis, Anthony V. Alfieri

Articles

In recent years, academics committed to a new law and sociology of poverty and inequality have sounded a call to revisit the inner city as a site of cultural and socio-legal research. Both advocates in anti-poverty and civil rights organizations, and scholars in law school clinical and university social policy programs, have echoed this call. Together they have embraced the inner city as a context for experiential learning, qualitative research, and legal-political advocacy regarding concentrated poverty, neighborhood disadvantage, residential segregation, and mass incarceration. Indeed, for academics, advocates, and activists alike, the inner city stands out as a focal point of ...


Building By Right: Social Equity Implications Of Transitioning To Form-Based Code, Daniela A. Tagtachian, Natalie N. Barefoot, Adrienne L. Harreveld Jan 2019

Building By Right: Social Equity Implications Of Transitioning To Form-Based Code, Daniela A. Tagtachian, Natalie N. Barefoot, Adrienne L. Harreveld

Articles

No abstract provided.


Procompetitive Justifications In Antitrust Law, John M. Newman Jan 2019

Procompetitive Justifications In Antitrust Law, John M. Newman

Articles

The Rule of Reason, which has come to dominate modern antitrust law, allows defendants the opportunity to justify their conduct by demonstrating procompetitive effects. Seizing the opportunity, defendants have begun offering increasingly numerous and creative explanations for their behavior.

But which of these myriad justifications are valid? To leading jurists and scholars, this has remained an "open question," even an "absolute mystery." Examination of the relevant case law reveals multiple competing approaches and seemingly irreconcilable opinions. The ongoing lack of clarity in this area is inexcusable: procompetitive-justification analysis is vital to a properly functioning antitrust enterprise.

This Article provides answers ...


Beyond Bitcoin: Leveraging Blockchain To Benefit Business And Society, Rachel Epstein, Marcia Narine Weldon Jan 2019

Beyond Bitcoin: Leveraging Blockchain To Benefit Business And Society, Rachel Epstein, Marcia Narine Weldon

Articles

No abstract provided.


The Poverty Of Clinical Canonic Texts, Anthony V. Alfieri Jan 2019

The Poverty Of Clinical Canonic Texts, Anthony V. Alfieri

Articles

No abstract provided.


Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions, Mary Anne Franks, Ari Ezra Waldman Jan 2019

Sex, Lies, And Videotape: Deep Fakes And Free Speech Delusions, Mary Anne Franks, Ari Ezra Waldman

Articles

No abstract provided.


Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps Jan 2019

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 ...


Equal Protection And The Male Gaze: An Approach To New Hampshire V. Lilley, Nicholas Mignanelli Jan 2019

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 ...


The Modern Corporation And Private Property Revisited: Gardiner Means And The Administered Price, William Wilson Bratton Jan 2019

The Modern Corporation And Private Property Revisited: Gardiner Means And The Administered Price, William Wilson Bratton

Articles

No abstract provided.


Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Innes, Bridget J. Crawford, Mehrsa Baradaran, Bennett Capers, Osamudia R. James, Keisha Lindsay Jan 2019

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Innes, Bridget J. Crawford, Mehrsa Baradaran, Bennett Capers, Osamudia R. James, Keisha Lindsay

Articles

No abstract provided.


Antitrust In Digital Markets, John M. Newman Jan 2019

Antitrust In Digital Markets, John M. Newman

Articles

Antitrust law has largely failed to address the challenges posed by digital markets. At the turn of the millennium, the antitrust enterprise engaged in intense debate over whether antitrust doctrine, much of it developed during a bygone era of smokestack industries, could or should evolve to address digital markets. Eventually, a consensus emerged: although the basic doctrine is supple enough to apply to new technologies, courts and enforcers should adopt a defendant-friendly, hands-off approach.

But this pro-defendant position is deeply- and dangerously- flawed. Economic theory, empirical research, and extant judicial and regulatory authority all contradict the prevailing views regarding power ...


Social Justice And Deposit Return Calculations: A Study Of Success And Failure In Commercial Law Reform, William H. Widen Jan 2019

Social Justice And Deposit Return Calculations: A Study Of Success And Failure In Commercial Law Reform, William H. Widen

Articles

No abstract provided.