Law and Society Commons^™

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 …

Trump’S Insurrection: Pandemic Violence, Presidential Incitement And The Republican Guarantee, Elizabeth M. Iglesias

University of Miami Race & Social Justice Law Review

Our own experience has corroborated the lessons taught by the examples of other nations; . . . that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction. Should such emergencies at any time happen under the national government, there could be no remedy …

Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

Articles

At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Denying Cultural Intellectual Property: An International Perspective On Anjali Vats's The Color Of Creatorship, J. Janewa Osei-Tutu

Articles

In The Color of Creatorship, Anjali Vats offers a compelling analysis of intellectual property (IP) laws through the lens of critical race theory. Providing a persuasive account of the role of racialized perspectives and colonial histories in the making of IP laws, Vats calls on activists to "persuade lawmakers that knowledge production comes in a variety of forms." She makes a valuable contribution to the literature on race and IP, asking us to think about IP citizenship and how this has been framed in the United States. In this brief essay, I will connect Vats's analysis to some of the …

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 …

Restorative Approaches To Intimate Partner Violence And Sexual Harm, Donna Coker (Ed.)

Articles

No abstract provided.

The Middle Ground: A Meaningful Balance Between The Benefits And Limitations Of Artificial Intelligence To Assist With The Justice Gap, Katherine L. W. Norton

University of Miami Law Review

Access to justice continues to be an ongoing battle for those who cannot afford an attorney in civil legal matters. These civil legal matters touch issues that significantly impact daily life, from issues relating to health, such as advance directives, to family, such as custody of children. Lawyers, courts, and scholars have attempted to tackle this ongoing problem in our justice system. Some suggest that providing free counsel for all civil legal matters is the solution, while others suggest that self-help materials provide more immediate access to services and information. Regardless of the position one takes, the need is clear …

Twenty-First Century Formalism, Thomas B. Nachbar

University of Miami Law Review

Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth century, formalism’s meaning has become confused as formalism has been enlisted by both proponents and opponents of specific legal methodologies. For some, formalism has simply become an epithet used to describe virtually anything they dislike in legal thinking. Used often and inconsistently as a stand-in (and frequently a strawman), formalism’s distinct identity has been lost, its meaning merged with whatever methodology it is being used to support or attack.

This Article seeks to separate formalism …

All-Caps, Yonathan A. Arbel, Andrew Toler

Articles

A hallmark of consumer contracts is their use of long blocks of capitalized text. These "all-caps" clauses are meant to alert consumers to nonstandard, risky, or important aspects of the transaction that would otherwise be hidden in the fine print. Based on a belief in the power of all-caps, courts will often deny enforcement of many key terms-such as war­ranty disclaimers, liability releases, arbitration clauses, and automatic billing-unless they are presented in all-caps. This article is the first to empirically examine the effectiveness of all-caps. Using an experimental methodology, the article finds that all-caps fail to apprecia­bly improve consent. Moreover, …

The Price Of Justice: Fines, Fees And The Criminalization Of Poverty In The United States, Lisa Foster

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.

Masthead

University of Miami Race & Social Justice Law Review

No abstract provided.

Good For Thee, But Not For Me: How Bisexuals Are Overlooked In Title Vii Sexual Orientation Arguments, Michael Conklin

University of Miami Race & Social Justice Law Review

No abstract provided.

Fazaga V. Fbi: Putting The Force Back In The Foreignintelligence Surveillance Act, Christina Ferreiro

University of Miami Race & Social Justice Law Review

No abstract provided.

Little Pink Flower With A Darker Story To Tell: The Role Of Emojis In Online Human Trafficking And Potential Fosta-Sesta Liability, Olivia Parise

University of Miami Race & Social Justice Law Review

There seems to be an emoji for every expression, thought, and feeling – even for human traffickers. Emojis have evolved into a primary lexicon for online human trafficking. This coded language has allowed online human traffickers to evade detection and prosecution. Courts and law enforcement are confused by the seemingly innocent use of emojis in advertisements and conversations that have serious human trafficking implications. Now, the code is cracked. Researchers have studied the intersection of emojis and human trafficking to such an extent that they have caught on to the secret online language of emojis. As the use of emojis …

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Gabriel Scheffler, Andrew Hammond, Ariel Jurow Kleiman

Articles

No abstract provided.

The Death Of The Autonomous Venezuelan Judiciary, Amid Bennaim

University of Miami Inter-American Law Review

Access to impartial and effective courts is the cornerstone of democratic civil society. When the intention of political actors is to extinguish democratic civil society, they often wear away at the autonomy of the judiciary. International law and the constitutions of many states throughout the world guarantee access to autonomous courts. Despite having such guarantees in place, the government of the Bolivarian Republic of Venezuela has consistently attacked the judiciary in order to erode its autonomy and bring it under political control. Strategies used to achieve that goal include purging judges, intimidating them, and preventing judges from getting tenure. As …

Narcotraffic As Connected Political Crime In Colombia: The Farc Case, Andrea Mateus-Rugeles, Paula C. Arias

University of Miami Inter-American Law Review

No abstract provided.

Theory Of The Nudnik: The Future Of Consumer Activism And What We Can Do To Stop It, Yonathan A. Arbel, Roy Shapira

Articles

How do consumers hold sellers accountable and enforce market norms? This Article contributes to our understanding of consumer markets in three ways. First, the Article identifies the role of a small subset of consumers-the titular "nudniks"-as engines of market discipline. Nudniks are those who call to complain, speak with managers, post online reviews, and file lawsuits. Typified by an idiosyncratic utility function and certain unique personality traits, nudniks pursue action where most consumers remain passive. Although derided in courtrooms and the court of public opinion, we show that nudniks can solve consumer collective action problems, leading to broad market improvements. …

Family Secrets And Relational Privacy: Protecting Not-So-Personal, Sensitive Information From Public Disclosure, J. Lyn Entrikin

University of Miami Law Review

This Article seeks to map contemporary relational privacy issues in the context of the evolving “right of privacy” in the United States. Generally, the Article explains why the so-called “personal” right of informational privacy, whatever its legal foundations, cannot be realistically confined to an individual right given the dramatic scientific and technological developments in the twenty-first century. In particular, the Article proposes that both state and federal law must grapple with the inherently relational nature of privacy interests with respect to DNA profiles, which inherently implicate the privacy interests of one’s biological relatives, whether known or unknown.

Part I summarizes …

Fugitive Slaves And Undocumented Immigrants: Testing The Boundaries Of Our Federalism, Sandra L. Rierson

University of Miami Law Review

Federalism—the dual system of sovereignty that invests both the nation as a whole and each individual state with the authority to govern the people of the United States of America—is a foundational pillar of American democracy. Throughout the nation’s history, political crises have tested the resilience of this dual system of government established by the United States Constitution. The fundamental contradiction of slavery in a nation founded on the principle that “all men are created equal” triggered the nation’s most prominent existential crisis, resulting in the Civil War. In the years leading up to that war, the federal government’s protection …

Queering The Dream—The Impact Trump’S Decision Has On Lgbtq+ Dreamers, Candelario Saldana

University of Miami Race & Social Justice Law Review

On June 15, 2012, President Obama created the Deferred Action for Childhood Arrivals (“DACA”) program, which was an exercise of prosecutorial discretion that provided temporary relief from deportation to youth known as Dreamers. On September 5, 2017, the Trump administration announced that it would begin phasing out the program. The fate of the program has recently been litigated in courts including the Supreme Court, with a decision pending from the Supreme Court anytime in 2020 (although there is a push to stall a decision due to the COVID-19 pandemic). In this article I discuss the historical context of DACA and …

Ten Years Fighting Hate, David A. Hall

University of Miami Race & Social Justice Law Review

On October 28, 2009, President Barack Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (“the Act”). One of the goals of the Act was to broaden protections against crimes motivated by hatred for a person’s group membership (her perceived race, national origin, gender or gender identity, sexual orientation, disability, or religion). The Act intends to address the need for US law to recognize the particularly destructive and virulent nature of crimes motivated by this kind of animus toward minority groups. Such crimes can often have an outsized effect, because they are intended to …

A Matter For Interpretation: An Inquiry Into Confederate Symbolism And The Florida State Flag, Nicholas Mignanelli, Sarah C. Slinger

University of Miami Race & Social Justice Law Review

Are the red bars found on Florida’s state flag a remnant of early twentieth-century nostalgia for the Confederacy? Who first proposed this design and why? What did this change mean to the citizens who witnessed it? This Article is an attempt to answer these questions by approaching them through the lenses of original intent and original meaning. In doing so, the Authors advance new strategies for decision-makers interested in uncovering the motives of those who first erected or affixed allegedly Confederate monuments and symbols.