FIU Law Review最新文献

{"title":"Still “Snowing” in the Sunshine State: An Analysis of and Potential Solutions to the Lack of Protection from Employer Retaliation for Florida Lawyers Who Adhere to the State’s Mandatory Reporting of Professional Misconduct Rule","authors":"Jason A. Anon","doi":"10.25148/LAWREV.13.6.15","DOIUrl":"https://doi.org/10.25148/LAWREV.13.6.15","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131086636","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reflections on the International Law Commission and Its Role in World Affairs","authors":"J. Morton","doi":"10.25148/LAWREV.13.6.9","DOIUrl":"https://doi.org/10.25148/LAWREV.13.6.9","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124761073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"No Way, Usa!: The Lack of a Repatriation Agreement with Cuba and Its Effects on U.S. Immigration Policies","authors":"Annasofia A. Roig","doi":"10.25148/LAWREV.13.4.15","DOIUrl":"https://doi.org/10.25148/LAWREV.13.4.15","url":null,"abstract":"Cuba and the United States have had a tumultuous relationship for over five decades now. Since the Revolution in Cuba, Cuban citizens have been immigrating to the United States in large numbers, including through two Cuban government-sponsored mass exoduses in 1980 and 1994. Throughout that time, the Cuban government refused to negotiate with the United States for the return of its citizens. Because of the lack of diplomatic relations, the two nations did not have a repatriation agreement in place and no agreedupon mechanism existed by which the United States could return Cuban citizens to the island nation. As such, the United States was left with no alternative but to implement the wet foot-dry foot policy in 1995. Following the reestablishment of relations between Cuba and the United States, President Obama repealed wet foot-dry foot as a condition of the newlyestablished repatriation agreement. Finally, Cuba agreed to take back its citizens who either attempted to enter the United States illegally or were deportable from the United States for some other reason. After his election in 2016, President Trump took a harsh stance on Cuban policy and reversed some of President Obama’s changes. This led to a strong response from the Cuban government and created an uncertain future for the newly-established repatriation agreement.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132476009","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Abuse of Executive Power: Getting Beyond the Streetlight Effect","authors":"D. Bernstein","doi":"10.25148/LAWREV.11.2.4","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.4","url":null,"abstract":"While administrative law scholarship continues to focus on Chevron and related doctrines of judicial deference, the executive branch is increasingly undertaking significant but illegal, or at least extra-legal, actions that seem to leave little if any scope for judicial review, even if the Supreme Court desired to be far more aggressive about policing executive action. In this Article, I discuss several categories of such actions, while providing examples from the Obama administration. Part I discusses regulations disguised as “guidance,” with specific reference to the U.S. Department of Education Office of Civil Rights’ “Dear Colleague” letter regarding sexual assault on campus. Part II discusses measures taken during an economic emergency despite an absence of statutory authority for those measures, with specific reference to the government officials surreptitiously making day-to-day decisions for General Motors after the 2008 financial crisis. Finally, Part III discusses the refusal to implement existing law, with specific reference to the Obama administration’s delays and postponements in enforcing various provisions of the Affordable Care Act.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132066452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Category Errors and Executive Power","authors":"J. Adler","doi":"10.25148/LAWREV.11.2.8","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.8","url":null,"abstract":"In the context of implementing the Affordable Care Act and the Clean Air Act, the Obama Administration has asserted not only the authority to determine when, and how stringently, to enforce relevant provisions, but also the authority to waive or delay legal obligations enacted by Congress. These actions have prompted accusations that the Administration is exceeding the proper bounds of executive authority. The ensuing debate – and litigation – over these actions has generated a good deal of confusion about the nature and scope of executive power. Commentators have often misunderstood or mischaracterized the nature of the acts taken and their potential legal justifications, blurring the distinction between permissible executive discretion over matters of enforcement with broader discretion to adjust legal benefits and burdens. The purpose of this brief essay, prepared for a symposium at the Florida International University Law School, is to provide some clarity in the muddled discussion over executive power. Specifically, the aim is to help clarify what sorts of actions taken by the executive branch can be properly characterized as “enforcement” actions – where the President’s inherent authority to exercise prosecutorial discretion applies – and what sorts of actions do not.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-08-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115590432","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Government by Blog Post","authors":"J. Blackman","doi":"10.25148/LAWREV.11.2.10","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.10","url":null,"abstract":"During the implementation of the Affordable Care Act, President Obama repeatedly turned to this all-too-familiar pattern of executive action. First, the impact of the Affordable Care Act made certain groups worse off. Second, as a result, Congress was pressured to modify the law to alleviate these negative externalities from the law. However, Democrats feared that Republicans would seize the opportunity to unravel other portions of the law. This halted any possible bipartisan support for legislative amendments. Third, in the face of this gridlock, President Obama turned to executive action to alter the ACA’s onerous mandates. Specifically, he delayed and suspended the individual and employer mandates, as well as modified provisions affecting benefits for Congressional employees and coverage in the U.S. territories.Each of these executive actions — implemented through formal notice-and-comment rulemaking or informal social-media blogging — came as a complete surprise. Each change posed risks to the long-term sustainability of the law. Each change relied on tenuous readings of the statute, and dubious assertions of executive authority to accomplish ends entirely at odds with what Congress designed. Each action was contested in court by states and private parties. However, because the executive actions had the effect of lifting burdens, rather than imposing any injuries, the government vigorously contested that no one had standing to bring suit. As a result, the ultimate legality of these moves was decided not by the courts, but by the President, who desperately acted alone to salvage his signature law.One of the more disconcerting aspects of the law’s implementation, beyond the numerous delays and waivers, has been the cavalier approach by which the government announced these changes. It soon became a painful pastime of ferreting through these massive document dumps and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. This was no longer a government of law, but a government by blog post.This article was part of a symposium on the separation of powers hosted by the Florida International University Law Review.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-06-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115590340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"State Court Judges are Not Bound by Nonoriginalist Supreme Court Interpretations","authors":"Lee J. Strang","doi":"10.25148/LAWREV.11.2.6","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.6","url":null,"abstract":"In this brief Essay, I provide a tentative argument for modest state court interpretative independence. I argue that state courts possess interpretative independence from nonoriginalist U.S. Supreme Court interpretations. I also argue that state courts must follow all U.S. Supreme Court judgments (within the Court's jurisdiction) and originalist Supreme Court opinions. I close by suggesting that this modest state court interpretative independence is likely to advance federalism’s three primary values.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131151690","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements","authors":"Michael D. Ramsey","doi":"10.25148/LAWREV.11.2.9","DOIUrl":"https://doi.org/10.25148/LAWREV.11.2.9","url":null,"abstract":"The U.S. Constitution states that the President can make treaties with the advice and consent of the Senate, provided two thirds of Senators present concur. This high threshold for consent reflects the framers’ concern that treaties not be too easy to make. No one said the President alone could make treaties; many emphasized the contrary. James Wilson, for example, declared that “[n]either the President nor the Senate, solely, can complete a treaty; they are checks upon each other, and are so balanced as to produce security to the people”; Hamilton made similar observations in The Federalist. In modern times, however, Presidents on their own authority have made international agreements that look much like treaties. 2015 provides two examples. First, the President negotiated an agreement with Iran, China, France, Germany, Russia, Britain, and the European Union regarding Iran’s nuclear development. Known as the Joint Comprehensive Plan of Action (JCPOA) and announced in July 2015, its principal goal was to limit Iran to non-military nuclear development in return for lifting U.S. and international economic sanctions on Iran. Second, the President joined with leaders of over 150 nations to produce the Paris Agreement on climate change, with a final version announced in December 2015. The Agreement attempted to promote and coordinate controls on carbon emissions in response to concerns over human-caused global warming. Both agreements appear to involve substantial commitments by the United States, but neither will depend on approval by the Senate (or Congress).The President contends that these agreements are nonbinding under international law and so can be made on the President’s sole constitutional authority. This essay assesses that claim. It generally agrees with the President’s basic proposition but raises concerns about the application of that proposition to the Iran and Paris Agreements. It concludes that without adequate safeguards this approach can provide the President with substantial ability to evade the constitutional checks on the treaty-making power.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2016-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123556120","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Lone Wolf' Terrorism and the Classical Jihad : On the Contingencies of Violent Islamic Extremism","authors":"H. Hamoudi","doi":"10.25148/LAWREV.11.1.6","DOIUrl":"https://doi.org/10.25148/LAWREV.11.1.6","url":null,"abstract":"\"11 Florida International University Law Review 19 (2015)It is nearly impossible to describe Muslim expansionism in the centuries following the death of the Prophet Muhammad - broadly undertaken in service of the Islamic doctrine of jihad - as being somehow compatible with modern norms of international relations, including self-determination and noninterference in the affairs of other states. To detractors, this seems to suggest a certain tension in modern Muslim thought that jihadist movements have been able to exploit. Modern Muslim intellectuals, that is, are forced to somehow reconcile an expansionist past, which was not only tolerated by early jurists interpreting Islam's sacred texts but indeed exhorted by them as a duty of the Muslim community, with modern realities, where the jihad as it was historically understood has become something of an embarrassment. In so doing, the argument runs, they leave themselves exposed to the \"literalist\" claims of the jihadists, who can call up such sources at will and demonstrate the true Islamicity of their actions relative to modernists who can only rely on abstract principles and vague apologies that sound suspiciously Western. The purpose of this paper is to explore the fallacy of this conclusion through the examination of \"lone wolf\" terrorism. This form of terrorism is quite relevant not only because of its inherent danger, but also because the methods of the lone wolf terrorist have been broadly accepted by a panoply of the most extreme Islamist organizations, very much including the so called Islamic State. I will show that even if early and medieval Muslim jurists hardly incorporated a worldview that rested on principles of mutual tolerance and respect toward other states and other religions, they nonetheless regarded the jihad as a fundamentally conservative doctrine, meant to preserve the Muslim state as it was and direct violence exclusively in external directions, in an organized and systematic attempt to expand what was known as the House of Islam into the universal Muslim state. The notion of lone wolf terrorism - individually directed and organized violence, executed beyond the meaningful control of the caliph - was entirely foreign. Moreover, it depends on deliberate violation of one of classical Islam's core concepts in international relations, that of respect for the terms of a covenant of security, or aman, when granted by a non-Muslim power to a Muslim or the reverse.","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116172810","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Religious Sex Status and the Implications for Transgender and Gender Nonconforming People","authors":"S. Crincoli","doi":"10.25148/LAWREV.11.1.10","DOIUrl":"https://doi.org/10.25148/LAWREV.11.1.10","url":null,"abstract":"","PeriodicalId":300333,"journal":{"name":"FIU Law Review","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2015-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124869952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}