Law and Politics Commons^™

One Step Forward, Two Steps Backward: An Elastic Products Liability Framework For E-Cigarette Regulation, Evan Robinson

University of Miami Law Review

Societal innovation is frequently triggered by need. Year after year, novel technologies are created by entrepreneurs who seek to find a more effective, efficient, or less dangerous way of accomplishing a specific goal. Oftentimes, these new technologies enter the marketplace bringing with them a host of uncertainties concerning both their performance and effect on consumer activity. Despite these inevitable uncertainties, new technologies play a vital role in advancing society when appropriately controlled. Indeed, while the appropriate levels of control may vary across industries and technologies, one principal remains constant amongst the mall: the obligation to balance risk with reward. The …

Therapeutic Jurisprudence: Foundations, Expansion, And Assessment, David C. Yamada

University of Miami Law Review

Therapeutic Jurisprudence: Foundations, Expansion, and Assessment Founded in 1987 by law professors David Wexler and the late Bruce Winick, therapeutic jurisprudence (“TJ”) is a multidisciplinary school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of law, policy, and legal institutions. In legal events and transactions, TJ inherently favors outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation. …

The Promotion Of The General Welfare: Using The Spending Clause To End The Criminalization Of Homelessness In America, David Stuzin

University of Miami Law Review

The U.S. is experiencing a homelessness crisis. While the government claims that there are half a million people experiencing homelessness in this country, the actual number is likely much larger than that estimate. Rather than investing in long-term solutions to homelessness, most states and municipalities have responded to this crisis by criminalizing conduct related to homelessness—an expensive approach hat perpetuates the cycle of homelessness and causes many people experiencing homelessness to needlessly suffer as a result. While advocates have fought criminalization in the courts, a problem of this size and scale cannot be solved through litigation alone. This Note advocates …

The Statutory Death Of The Gig Economy: How California Policy Incentivizes The Automation Of Five Million Jobs, Henry Moreno

University of Miami Law Review

With the advent of the gig economy, many have benefited from the availability of flexible work, particularly in the service industry. Since then, whether these workers are independent contractors or employees—entitled to certain rights and benefits—has been intensely debated. This Note examines the different legal approaches used in worker classification and the ramifications an employee designation could have on the estimated five million jobs the gig economy currently supports. Accordingly, this Note advocates the current state of the law is inept as applied to the gig economy and examines a potential framework to align the benefits of the gig economy …

Restorative Retributivism, Brian M. Murray

University of Miami Law Review

The current criminal justice moment is ripe for discussion of first principles. What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration. One theory recently put forth—reconstructivism—purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system. It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts. In particular, reconstructivism is a …

Partisan Gerrymanders: Upholding Voter Suppression And Choosing Judicial Abdication In Rucho V. Common Cause, Frances R. Hill

University of Miami Law Review

Under the Constitution, voters choose their elected officials. Partisan gerrymanders, however, enable elected officials to choose their voters and, in the process, dilute the votes of citizens who do not support them. From this perspective, partisan gerrymanders undermine the sovereignty of the people and, thereby, undermine the foundation of this democratic republic. In Rucho v. Common Cause, the Supreme Court declared that partisan gerrymandering raises a nonjusticiable political question beyond the competence of the federal courts. This Article asks: How did this happen? How could the Supreme Court abdicate its duty to protect the sovereignty of the people and …

Anti-Science Ideology, Shi-Ling Hsu

University of Miami Law Review

Political attacks against scientists and scientific research are nothing new, though the Trump Administration appears to have increased both the breadth and the depth of such attacks. What is new, it seems, are attacks on science that are not in service of protecting any identifiable regulated industry. Under the Trump Administration, the attacks on science are more systemic, and aimed more at reducing scientific capacity in the federal government, rather than mere one-off policy interventions to help an individual industry.

This Article suggests that the Trump Administration, more than previous administrations, has sought to use science as part of a …

Using Election Forecasts To Understand The Potential Influence Of Campaigns, Media, And The Law In U.S. Presidential Elections, Peter K. Enns, Julius Lagodny

University of Miami Law Review

How do campaigns, media, and voting laws influence the outcome of U.S. Presidential elections? Political scientists often argue that these factors influence outcomes much less than commonly thought. To illustrate this argument, we show that we can predict the presidential vote in each state with a high degree of accuracy. Specifically, between 2004 and 2016, we correctly predict 94% of all state presidential vote outcomes. Our predictions are based on a forecasting model of the Electoral College, based primarily on each state’s approval rating of the incumbent president (using almost 90,000 survey responses from June and July of election years), …

Virus As Foreign Invader: U.S. Voters & The Immigration Debate, Rebecca Sharpless

University of Miami Law Review

Nativist sentiments against classes of immigrants have existed since colonial times. But views about immigration and immigrants drive U.S. electoral politics now more than ever, accounting for a significant number of voters who crossed party lines in the 2016 presidential election. The COVID-19 pandemic has the potential to harden deeply-held beliefs about outsider threats and further entrench the polarization of public views on immigration. During his campaigns and term in office, President Trump popularized nativism, breaking from the received wisdom of the Republican party. Casting the virus as a foreign invader, he built on fears of the contagion to alter …

The Cost Of Free Speech: Combating Fake News Or Upholding The First Amendment?, Brittany Finnegan

University of Miami Law Review

This Note examines the pervasive and evolving “fake news” problem. Specifically, it explores whether the United States government could pass legislation, modeled after a recently passed German law, regulating propagandistic social media posts. The answer to this question, in short, is no. By comparing the German Basic Law and the U.S. Constitution, this Note highlights the stringency of U.S. First Amendment protections and underscores the U.S. government’s inability to combat fake news through legislation. While this Note primarily focuses on the prevalence of fake news in the context of the 2016 U.S. presidential election, related developments and areas of research …

Power To The People: The Supreme Court’S Confirmation Of State Power In The Wake Of Faithless Electors, Gabrielle Engel

University of Miami Law Review

One of the most cherished American liberties is the right to vote. Yet, the Constitution does little to protect the integrity of individual voters. Instead, the Founding Fathers created an Electoral College to represent states’ will. Over time, states enacted laws requiring that electoral votes be cast to reflect the state popular vote. In 2016, several electors voted for candidates who did not win their state’s popular vote, grounding their actions in a believed constitutional right to vote freely and unencumbered by state outcomes. The Supreme Court addressed this issue in Chiafalo v. Washington, holding that states may bind electoral …