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Articles 31 - 60 of 71
Full-Text Articles in Law and Politics
Hiding In Plain Language: A Solution To The Pandemic Riddle Of A Suspended Grand Jury, An Expiring Statute Of Limitations, And The Fifth Amendment, Nicole D. Mariani
Hiding In Plain Language: A Solution To The Pandemic Riddle Of A Suspended Grand Jury, An Expiring Statute Of Limitations, And The Fifth Amendment, Nicole D. Mariani
University of Miami Law Review
Under the statute of limitations applicable to most federal crimes, 18 U.S.C. § 3282(a), “no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” That long-standing, generally uncontroversial procedural statute was thrust into the spotlight in 2020, when courts, prosecutors, and criminal defendants confronted an unprecedented and extraordinary scenario.
In response to the COVID-19 pandemic, many federal district courts suspended grand juries to prevent the spread of the highly contagious life-threatening virus through group congregation. Indeed, …
Maritime Magic: How Cruise Lines Can Avoid State Law Compliance Through Passenger Contracts, Cameron Chuback
Maritime Magic: How Cruise Lines Can Avoid State Law Compliance Through Passenger Contracts, Cameron Chuback
University of Miami Law Review
Florida Statutes section 381.00316 prohibits businesses in Florida from requiring consumers to provide documentary proof of COVID-19 vaccination to access businesses’ goods and services. Norwegian Cruise Line Holdings (“NCLH”) has recently challenged section 381.00316’s applicability to its cruise operations because NCLH believes that requiring its passengers to provide documentary proof of COVID-19 vaccination is the one constant that allows NCLH’s cruise ships to smoothly access foreign ports, which have differing COVID-19 protocols and rules. In Norwegian Cruise Line Holdings, Ltd. v. Rivkees, the United States District Court for the Southern District of Florida ruled in favor of NCLH on this …
Florida’S Judicial Ethics Rules: History, Text, And Use, Robert M. Jarvis
Florida’S Judicial Ethics Rules: History, Text, And Use, Robert M. Jarvis
University of Miami Law Review
A handy summary of Florida’s federal and state judicial ethics codes does not exist. As a result, Florida attorneys and judges often must invest considerable time and effort when a question of judicial ethics arises. To assist such queries, this article provides a comprehensive description of both the Florida Code of Judicial Conduct and the Code of Conduct for United States Judges.
Foreword, Hon. Roy K. Altman
Game Of Thrones: Liberty & Eminent Domain, Mitchell F. Crusto
Game Of Thrones: Liberty & Eminent Domain, Mitchell F. Crusto
University of Miami Law Review
This Article analyzes the relationship between private property and the government’s power to expropriate it. When it comes to protecting private property from governmental expropriation, our Constitution is conflicted. On the one hand, the right to private property is a foundational principle that defines the American spirit, our history, and our culture. Yet, on the other hand, the Founders adopted the government’s superior authority over private property, that is, eminent domain, for public purpose and with just compensation, via the Takings Clause of the Fifth Amendment. This “private property conundrum” requires us to explore the limits of eminent domain relative …
Expert Testimony By Public University Faculty: Exposing Doctrinal Deficiencies Of Academic Freedom As A Legal Right And Proposing A Solution Within The Public-Employee Speech Doctrine, Clay Calvert
University of Miami Law Review
When the University of Florida (“UF”) prohibited three professors in 2021 from serving as expert witnesses in a lawsuit filed against the State of Florida, the decision sparked a national debate about academic freedom and free speech at public universities. The professors also sued UF in federal court in Austin v. University of Florida Board of Trustees alleging a violation of their First Amendment rights. This Article asserts that the constitutional doctrine of academic freedom is sadly deficient for resolving such lawsuits. The Article explains, instead, that the public-employee speech doctrine provides the appropriate framework for analyzing cases filed by …
States May Statutorily Bind Presidential Electors, The Myth Of National Popular Vote, The Reality Of Elector Unit Rule Voting And Old Light On Three-Fifths Of Other Persons, William Josephson
University of Miami Law Review
This Article discusses the United States Supreme Court’s July 6, 2020 decision in Chiafalo v. Washington State as it impacts the most in-depth analysis yet published of the proposed National Popular Vote (“NPV”) Interstate Compact. NPV purports to provide for popular vote election of a President of the United States even if the winner of the popular vote did not win the Electoral College. It concludes that NPV cannot accomplish its purported purpose. The article also criticizes a recent article proposing dividing each state’s electors vote in accordance with the popular vote proportions in each such state instead of, as …
Textualism Today: Scalia’S Legacy And His Lasting Philosophy, Chase Wathen
Textualism Today: Scalia’S Legacy And His Lasting Philosophy, Chase Wathen
University of Miami Law Review
Appointed to the Supreme Court in 1986 by President Reagan, Justice Antonin Scalia redefined the philosophy of textualism. Although methods like the plain meaning rule had been around for over a century, the textualist philosophy of today was not mainstream. While Scalia’s textualism is thought to be a conservative philosophy, Scalia consistently maintained that it was judicial restraint rather than conservatism at the heart of his method. The key tenant of Scalia’s new textualism was an outright rejection of legislative history, which he often brought up in opinions only to mock and dismiss as irrelevant. Starting with the hypothesis that …
Ramos Retroactivity And The False Promise Of Teague V. Lane, Tori Simkovic
Ramos Retroactivity And The False Promise Of Teague V. Lane, Tori Simkovic
University of Miami Law Review
When the Supreme Court changes course and announces a new rule of constitutional criminal law, the question remains: what happens to those imprisoned by the old practice now deemed unconstitutional? Since 1989, that question has been answered by Teague v. Lane, a restrictive holding that limits retroactivity by prioritizing judicial resources over the constitutional rights of incarcerated people. But should it matter if the old rule has explicitly racist origins?
Convictions by non-unanimous juries emerged in Louisiana and Oregon with the stated intention of rendering Black jurors' votes meaningless. In 2020, the Supreme Court in Ramos v. Louisiana held that …
Cafo’S Are A Public Health Crisis:The Creation Of Covid-19, Helena Masiello
Cafo’S Are A Public Health Crisis:The Creation Of Covid-19, Helena Masiello
University of Miami Law Review
Concentrated Animal Feeding Operations (“CAFO’s”) are largely unregulated by State or Federal Laws in the United States. As a result of this lack of oversight, they are a breeding ground for deadly infectious diseases. The COVID-19 epidemic has demonstrated the threat that diseases pose to the United State like H1N1, SARS, and Ebola.
The USDA needs to regulate CAFOs under the mandate given to them by congress in the AHPA to ensure that they are not the epicenter of the next wave of deadly infectious diseases. Scientists have been warning about the disease potential of CAFOs for the last decade, …
Can Covid-19 Teach Us How To End Mass Incarceration?, Amy Fettig
Can Covid-19 Teach Us How To End Mass Incarceration?, Amy Fettig
University of Miami Law Review
In this essay, the author argues that federal, state and local government response to the COVID-19 epidemic in prisons and jails was largely incompetent, inhumane, and contrary to sound public health policy, resulting in preventable death and suffering for both incarcerated people and corrections staff. However, the lessons learned from these failures provide a roadmap for policy priorities and legal reform in our ongoing need to decarcerate and end the era of mass incarceration, including: (1) rolling back extreme sentences, recalibrating sentences generally and providing for “second look” mechanisms to those currently serving sentences beyond 10 years; (2) ensuring that …
Crime And Punishment: An Empirical Study Of The Effects Of Racial Bias On Capital Sentencing Decisions, Matthew A. Gasperetti
Crime And Punishment: An Empirical Study Of The Effects Of Racial Bias On Capital Sentencing Decisions, Matthew A. Gasperetti
University of Miami Law Review
Racism has left an indelible stain on American history and remains a powerful social force that continues to shape crime and punishment in the contemporary United States. In this article, I discuss the socio-legal construction of race, explore how racism infected American culture, and trace the racist history of capital punishment from the Colonial Era to the present. After framing the death penalty in cultural and historical context, I report original empirical results from one of the largest studies (n = 3,284) of mock juror capital sentencing decisions published to date. My results show that mock jurors who self reported …
“Incorrigibility Is Inconsistent With Youth”: The Supreme Court’S Missed Opportunity To Cure The Contradiction Implicit In Discretionary Jlwop Sentencing, Ana Ionescu
University of Miami Law Review
The juvenile life without parole (“JLWOP”) caselaw is based in part on the science underlying adolescent brain development. Numerous research studies have examined the behaviors and brain processes of adolescents. Courts have relied on these findings in reaching some of its most important decisions affecting juveniles implicated in the criminal justice system. The latest of those decisions came in 2021 with the Jones v. Mississippi case before the United States Supreme Court. The Court held that a sentencing court is not required to make a specific finding of permanent incorrigibility before sentencing the juvenile defendant to life without parole. This …
The Rise Of Plain Language Laws, Michael A. Blasie
The Rise Of Plain Language Laws, Michael A. Blasie
University of Miami Law Review
When lawmakers enacted 776 plain language laws across the United States, no one noticed. Apart from a handful, these laws went untracked and unstudied. Without study, large questions remain about these laws’ effects and utility, and about how they inform the adoption or rejection of plain language.
This Article creates a conceptual framework for plain language laws to set the stage for future empirical research and normative discussions on the value of plain language. It unveils the first nationwide empirical survey of plain language laws to reveal their locations, coverages, and standards. In doing so, the Article creates a systematic …
Gotta Catch ‘Em All!: The National Diet’S Inadequate Attempt To Control Manga Pirates, Sydney Landers
Gotta Catch ‘Em All!: The National Diet’S Inadequate Attempt To Control Manga Pirates, Sydney Landers
University of Miami Law Review
Internet piracy threatens Japan’s most popular cultural exports: manga and anime. Fans have taken to translating and distributing the works online for other fans to enjoy because official translated versions of manga and anime are released overseas later than the original in Japan, or they are never released at all. In order to combat the illegal downloading and distributing of manga, the National Diet, Japan’s legislature, passed an amendment to the Japanese Copyright Act that increases punishments for leech sites and illegal downloading of manga.
This Note discusses the manga and anime industries and their struggles with piracy before reviewing …
Slapping Back In Federal Court: Florida’S Anti-Slapp Statute, Harris Blum
Slapping Back In Federal Court: Florida’S Anti-Slapp Statute, Harris Blum
University of Miami Law Review
Strategic Lawsuits Against Public Participation, or “SLAPPs,” are frivolous lawsuits used to silence and harass critics by forcing them to spend money on legal fees. An overwhelming majority of states have enacted anti-SLAPP statutes to shield against these lawsuits, recognizing their potential to chill free speech and healthy debate. Though anti-SLAPP statutes come in different shapes and sizes, they commonly employ procedural mechanisms such as expedited dismissal procedures, heightened standards at the pleading and summary judgment stages, and fee-shifting provisions. The unintended consequence of these features is that SLAPP filers can often elude the protections of anti-SLAPP statutes by filing …
Muzzling Anti-Vaxxer Fear Speech: Overcoming Free Speech Obstacles With Compelled Speech, Barbara Pfeffer Billauer
Muzzling Anti-Vaxxer Fear Speech: Overcoming Free Speech Obstacles With Compelled Speech, Barbara Pfeffer Billauer
University of Miami Law Review
As the anti-vax industry continues to stoke fear and incite vaccine resistance, some means must be found to detoxify their false messages. Counterspeech, the preferred mode to deal with unfortunate rhetoric, is both ineffective and counter-effective when addressing factual “scientific speech” addressing health, I show here that many instances of the most potent anti-vax speech arise in the context of arguably commercial speech. I therefore investigate other free speech protections available to shield factually false anti-vax speech used in this context, concluding that while complete First Amendment protection may exist in the context of political speech (without proof of fraud), …
“Safe Spaces” And “Brave Spaces”: The Case For Creating Law School Classrooms That Are Both, Laura P. Graham
“Safe Spaces” And “Brave Spaces”: The Case For Creating Law School Classrooms That Are Both, Laura P. Graham
University of Miami Law Review
Over the past decade, the subject of “safe spaces” on college and university campuses has received much press. As originally conceived, the term “safe space” refers to an environment—often a physical space—in which “everyone feels comfortable expressing themselves and participating fully, without fear of attack, ridicule, or denial of experience.” And while this original conception may not seem controversial, the meaning of “safe spaces” as applied to higher education classrooms is a subject of ongoing vigorous debate. On one side of the debate are those who believe that safe spaces foster learning by making it possible for students to be …
We’Ll Protect You! Oh, Wait, But Not You. Or You, You, Or You: The Consequences Of The Court’S Major Undertaking In Department Of Homeland Security V. Thuraissigiam, Jae Lynn Huckaba
University of Miami Law Review
For centuries, the writ of habeas corpus has been used to test the legality of restraints on a person’s freedom. The Founders, recognizing the significance of the protection, incorporated the writ into the Suspension Clause of our Constitution. In the last century, the Supreme Court has repeatedly held that noncitizens may invoke the Suspension Clause. Courts, especially in the immigration context, also expanded the definition of “in custody” for the purpose of habeas corpus to included non-detained persons in removal proceedings. The Supreme Court has departed from such precedent and gave new meaning to habeas corpus in the immigration context—a …
What Is Standard Tomorrow, May Not Have Been Today: An Argument For Claiming ScèNes À Faire, Logan Sandler
What Is Standard Tomorrow, May Not Have Been Today: An Argument For Claiming ScèNes À Faire, Logan Sandler
University of Miami Law Review
Recent lawsuits involving the Pirates of the Caribbean film franchise and the Oscar award-winning movie The Shape of Water required courts to wrestle with the application of the decisive scènes à faire doctrine. In doing so, the Ninth Circuit exposed the doctrine’s chief pitfall: the lack of a temporal framework.
The modern scènes à faire doctrine limits the scope of what authors can claim as substantially similar by excluding the standard or stock elements in a given expressive work from copyright protection. Courts will often conclude that a contested element is scènes à faire if it can be demonstrated that …
Blackwater Rising: The Legal Issues Raised By The Unprecedented Privatization Of U.S. Military Functions, Robert D. Peltz
Blackwater Rising: The Legal Issues Raised By The Unprecedented Privatization Of U.S. Military Functions, Robert D. Peltz
University of Miami Law Review
The Army has used civilian contractors to provide supplies and services to its forces in the field since the Revolutionary War. These early contractors fed the cavalry’s horses and transported supplies. Over the years, the role of the civilian contractor has dramatically evolved. Following the Vietnam War and the end of the draft, there has been an ever-increasing privatization of functions previously performed by the military.
The wars in Iraq and Afghanistan, which began in response to the September 11 attacks and have only recently started to come to a formal end, have significantly accelerated this process. As a result, …
Bad Law Or Just Bad Timing?: Post-Pandemic Implications Of Managed Care Advisory Group, Llc V. Cigna Healthcare, Inc.’S Ban On The Use Of Virtual Technology For Taking Non-Party Evidence Under Section 7 Of The Federal Arbitration Act, Latoya C. Brown
University of Miami Law Review
The COVID-19 pandemic has had an enormous socio-economic impact globally. To continue operations, the legal field, like other sectors, has had to adapt to the exigencies of the pandemic by, inter alia, becoming increasingly reliant on remote technologies to conduct business. Yet, only a few months before COVID-19 was declared a pandemic, the Eleventh Circuit ruled in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), that Section 7 of the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 7, prohibits prehearing discovery and does not allow a summonsed witness to appear in locations …
Foreword, Lauren F. Louis
Cruise Contracts, Public Policy, And Foreign Forum Selection Clauses, John F. Coyle
Cruise Contracts, Public Policy, And Foreign Forum Selection Clauses, John F. Coyle
University of Miami Law Review
A cruise ship contract is the prototypical contract of adhesion. The passenger is presented with the contract on a take-it-or-leave-it basis. If she refuses to sign, the ship sails without her. To ensure that cruise companies do not draft one-sided contracts that are unfair to passengers, Congress has enacted a number of statutes that regulate these agreements. One such statute is 46 U.S.C. § 30509. This law stipulates that any contract provision that limits the liability of the cruise company for personal injury or death is void as against public policy if the ship stops at a U.S. port.
In …
The Power Of Two Words To Split Circuits, Natalie Whitacre
The Power Of Two Words To Split Circuits, Natalie Whitacre
University of Miami Law Review
28 U.S.C. § 1782 authorizes federal judges to grant assistance to a “foreign or international tribunal” for discovery proceedings. The meaning of the term “foreign or international tribunal” has been the subject of much dispute. In 2019 the Sixth Circuit became the first court of appeals to extend the purview of the statute to private commercial arbitration, creating a circuit split. However, the use of 28 U.S.C. § 1782 in arbitral proceedings raises a number of questions about whether U.S. style discovery would impede the efficiency of arbitration and whether the practice could be extended to international tribunals located within …
Informed Consent: Disclosure Of The Presentence Investigation Report Before A Guilty Plea, George D. Bell
Informed Consent: Disclosure Of The Presentence Investigation Report Before A Guilty Plea, George D. Bell
University of Miami Law Review
The Constitution bestows upon all accused persons the right to a trial by jury, the right to confront accusers, the right to remain silent, and the right to be presumed innocent. The law requires waiver of these rights to be done voluntarily, with the fullest possible knowledge of material consequences. Punishment is possibly the most material consequence of a guilty plea, yet criminal defendants who pleaded guilty are forced to relinquish their rights before punishment is determined. Our jurisprudence of due process prohibits this kind of practice, but it is routine in Federal court. For a guilty plea to comport …
Does It Really Matter?: Making The Case For A Materiality Requirement In False Claims To U.S. Citizenship Under The Immigration And Nationality Act, Elizabeth Montano, Edward F. Ramos
Does It Really Matter?: Making The Case For A Materiality Requirement In False Claims To U.S. Citizenship Under The Immigration And Nationality Act, Elizabeth Montano, Edward F. Ramos
University of Miami Law Review
Materiality plays an important role in limiting the reach of laws that penalize misrepresentations. Laws that include no materiality element punish any covered misrepresentation regardless of its relevance—like lying about hair color on a loan application. By contrast, laws that include a materiality element withhold punishment for immaterial misrepresentations of that kind—in other words, misrepresentations that have no tendency to affect the ultimate decision.
Our immigration laws make it a deportable offense for a noncitizen to “falsely represent” herself as a U.S. citizen for a purpose or benefit under the law. Although this law has been on the books for …
Notice: Aircraft Lien Law In Florida, Timothy M. Ravich
Notice: Aircraft Lien Law In Florida, Timothy M. Ravich
University of Miami Law Review
Establishing (e.g., perfecting) and enforcing a lien presents technical pitfalls and practical problems with which practitioners and courts are often unfamiliar or uncomfortable. After all, the law of liens requires an understanding of many different areas of the law, including the law of contract, bailment, unjust enrichment, and customary law. But among the most fraught with uncertainty are mechanic’s liens, which establish a right in favor of persons—“artisans”—performing or furnishing labor, services, fuel, or material upon personal property. Florida’s mechanic’s lien statute raises particularly challenging legal issues as applied to aircraft.
In Florida, the perfection and enforcement of a mechanic’s …
One Vote, Two Winners: Team-Ticket Gubernatorial Elections And The Need For Further Reform, T. Quinn Yeargain
One Vote, Two Winners: Team-Ticket Gubernatorial Elections And The Need For Further Reform, T. Quinn Yeargain
University of Miami Law Review
Historically, governors and lieutenant governors were elected in separate elections. This frequently meant that governors and lieutenant governors of different parties were elected, undermining the democratic legitimacy of gubernatorial succession. But when New York adopted team tickets in 1953, it ignited a flurry of similar changes nationwide. Today, most states with lieutenant governors elect them on a team ticket with governors. And, since the initial adoption of team tickets, several other trends—specifically, trends away from separate primaries and toward post-primary selection—have emerged in how lieutenant governors are elected. Despite the significance of these changes, however, they remain largely unexplored by …
The Dawn Of A Judicial Takings Doctrine: Stop The Beach Renourishment, Inc. V. Florida Department Of Environmental Protection, Brendan Mackesey
The Dawn Of A Judicial Takings Doctrine: Stop The Beach Renourishment, Inc. V. Florida Department Of Environmental Protection, Brendan Mackesey
University of Miami Law Review
In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court had violated a group of littoral property owners’ Fifth Amendment rights—or committed a “judicial taking”—by upholding the state of Florida’s Beach and Shore Preservation Act. Under the Act, the State is entitled to ownership of previously submerged land it restores as beach; this is true even though the normal private/state property line, the mean-high water line, is moved seaward, and the affected littoral owner(s) lose their right to have their property …