University of Miami law review最新文献

{"title":"Futurlawma: 21st Century Solutions to 31st Century Problems","authors":"J. S. Wales","doi":"10.2139/SSRN.2243041","DOIUrl":"https://doi.org/10.2139/SSRN.2243041","url":null,"abstract":"Welcome to the world of the future! Now what? With advances in cryogenic and genetic replication technologies fundamental notions of what it means to live and die are being challenged on both a philosophical and legal level. This paper analyzes how advances in science, as presented in the fictional cartoon television show Futurama, will impact law and society.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"68 1","pages":"87"},"PeriodicalIF":0.0,"publicationDate":"2013-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68024598","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":"Moving Toward Law: Refocusing the Federal Courts’ Plain Error Doctrine in Criminal Cases","authors":"D. Berger","doi":"10.2139/SSRN.1809726","DOIUrl":"https://doi.org/10.2139/SSRN.1809726","url":null,"abstract":"This article examines the plain error doctrine in criminal cases in the federal courts. An examination of the earliest plain error cases shows the federal courts’ concern that, without the authority to address errors not preserved with a contemporaneous objection, federal courts would affirm convictions and sentences that were either wrongful or unfair. But the plain error doctrine that the federal courts now employ, as announced in United States v. Olano, is poorly suited to discovering and correcting even the serious errors that the plain error doctrine was intended to remedy. Because the doctrine is discretionary and fact-specific, it fails to generate precedents to guide future courts and litigants and perpetuates a guilt-based approach to evaluating errors. Moreover, Olano’s four-pronged test leads appellate courts away from the most critical inquiry: did the error undermine the fairness and reliability of the defendant’s conviction and sentence? The article proposes a new formulation of the plain error doctrine that addresses these problems.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"67 1","pages":"521"},"PeriodicalIF":0.0,"publicationDate":"2012-08-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1809726","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67751036","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":"Mandating Precontractual Disclosure","authors":"E. Amarante","doi":"10.2139/ssrn.2118216","DOIUrl":"https://doi.org/10.2139/ssrn.2118216","url":null,"abstract":"Parties negotiating an arm’s length contract are generally not required to disclose facts to one another. Although this default rule is supported by both centuries of common law and freedom of contract principles, courts and legislatures treat certain transactions differently. This is particularly true in circumstances in which the default rule results in an unacceptable harm suffered by a broad group of persons. In such cases, lawmakers have acted to impose precontractual disclosure obligations. These decisions and statutes are largely reactive: a harm is identified in a certain transaction’s precontractual period and disclosure is mandated to rectify the harm. These reactive measures, although helpful, are insufficient in some instances. Large scale economic calamities are often caused by information asymmetries in individual contracts. This was true in the Great Depression (unregulated contracts for sales of stock) and the Great Recession (unregulated contracts for sales of mortgage-backed securities). <br><br>This article proposes an analytical tool to prospectively identify such transactions. This tool, the Disclosure Framework, provides lawmakers a means of identifying circumstances in which it is appropriate to mandate precontractual disclosure. To accomplish this task, the Disclosure Framework directs lawmakers to identify the information asymmetry in a transaction and balance the respective harms of either disclosure or nondisclosure on the affected stakeholder group. <br><br>Precontractual disclosure is a matter of compelling immediacy. Because regulatory agencies are currently struggling with how to structure the disclosure mandates of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the question of when it is appropriate to mandate precontractual disclosure is both timely and important. Although designed for legislators, the Disclosure Framework may also serve as a tool for consumer rights groups and agencies (such as the recently established Consumer Financial Protection Bureau) to help spur legislative action. Ultimately, the Disclosure Framework provides support for the imposition of precontractual disclosure that is both theoretically sound and consistent with common law and statutory exceptions to the default rule.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"36 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2012-07-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67920892","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 Right to Be Taken Seriously","authors":"J. Weinberg","doi":"10.2139/SSRN.2013567","DOIUrl":"https://doi.org/10.2139/SSRN.2013567","url":null,"abstract":"American law – in particular, American administrative law – grants citizens extensive rights to participate in government decision-making. Those rights kick in, most importantly, whenever a government entity engages in “rulemaking” as defined in the Administrative Procedure Act. When the federal government engages in rulemaking, it must give members of the public an opportunity to participate in its decision-making by submitting written comments with information or argument. And it must issue a written opinion articulating reasoned responses to any significant points that those public comments raise. The public’s engagement with government in rulemaking, thus, is marked by a two-way dialogic commitment, in which government decision-makers may not simply ignore the arguments raised by citizens. Rather, they must engage with them and respond. I’ll refer to citizens’ entitlement to such consideration as the “right to be taken seriously.”In this article, after examining the legal basis of the right to be taken seriously, I pose the question why we might value it. The first part of the answer is the easiest: mechanisms such as notice and comment help agencies make better decisions. The next part, though, is harder: does the presence of a right to be taken seriously make our government institutions more democratic? Commentators assume that it does. But standard theories of democracy and administrative law, I argue, don’t provide satisfying basis for that conclusion.I argue nonetheless that a more satisfying basis exists, and that to see it, we should focus less on the individual’s ability to comment than on the government’s obligation to hear, engage, and respond. That requirement puts governors and governed in a discursive relationship. It compels the state to engage in communicative, reason-based, discourse rather than the mere exercise of power. The government’s obligation in this manner to show respect, to treat commenters as democratic citizens rather than as objects of paternalistic control, is at the heart of the right to be taken seriously and its democratic bona fides.But there is, as always, a catch. I ground the democratic function of the right to be taken seriously in a theoretical understanding of democracy and, in part, in Habermas’s conception of communicative rationality. But is this theory reflected in the everyday practice of notice-and-comment? The answer is no; not really. In practice, agencies are often swamped by comments and pay serious attention to only some of them. They attend to those comments filed by repeat players with instrumental power, and may send the rest off to outside contractors to be ignored. While the interaction, even in this limited form, has value in bringing information to the eyes of the agency, it’s harder to argue that it’s meaningfully democratic or democratizing.To illuminate this gap between theory and practice, I turn to some history. The right to be taken seriously isn’t just a product of post-WWII en","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"67 1","pages":"149"},"PeriodicalIF":0.0,"publicationDate":"2012-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67852593","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":"A Legal Analysis of Romantic Gifts","authors":"Ruth Lee","doi":"10.2139/SSRN.2005493","DOIUrl":"https://doi.org/10.2139/SSRN.2005493","url":null,"abstract":"While many law review articles are devoted to the legal analysis of gifts, this article addresses romantic gifts in particular, to which many legal exceptions apply. In addition to offering a review of the legal economics behind gift-giving, this article is the first to survey the five legal theories of revocability for romantic gifts, as well as an unprecedented new theory recently employed in federal court. Although the general presumption is that gifts are irrevocable, courts have used five main theories to return romantic gifts to their donors — conditional gift, pledge, consideration, unjust enrichment, and fraud — as well as a new approach which has actually been used recently in federal court: criminal fraud. Criminal fraud is a surprising and unprecedented development because it not only requires the disgorgement of the gifts as the other theories do, but also punishes the donee beyond the cost of the gift. Thus, it is the only theory of revocability that will change the ex ante incentives of the donee. In the course of discussion, this article will note three economic paradoxes that arise in the context of romantic gifts: (1) non-cash gifts appear on first glance to be extremely inefficient because it involves guessing the desires of donees, but are nonetheless ubiquitous; (2) extremely inefficient gifts tend to be better signaling mechanisms than efficient gifts in romantic relationships; and (3) although one who pursues a relationship blatantly for financial benefits faces more social condemnation than one who tastefully hides her motivations, she or he is actually facilitating a more efficient relationship. This leads to a discussion of when romantic gifts should be revocable, which theories of court interference are the most appropriate, and how courts should craft doctrine in the future. Because of the potential of over-deterrence, courts should only impose punishments that exceed the value of the gift when there is a clear enough information asymmetry between the donor and the donee that it would be impossible for the donor to give his informed consent to the relationship or the gift.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"67 1","pages":"595"},"PeriodicalIF":0.0,"publicationDate":"2012-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67845480","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 Borders of E.U. Tax Policy and U.S. Competitiveness","authors":"George Mundstock","doi":"10.2139/SSRN.1966159","DOIUrl":"https://doi.org/10.2139/SSRN.1966159","url":null,"abstract":"In March of 2011, the European Commission proposed that the member states of the European Union allow corporations to elect a harmonized corporate income tax. A particularly interesting feature of the proposal is that income would be allocated among the member states using a mathematical apportionment formula rather than, as currently is the law, by determining the source of income on a case-by-case basis. The E.C. proposal presents a number of interesting and important issues. One of the most interesting is how the apportionment feature of the proposal would impact business risk taking within the European Union. The European Commission believes that its proposal would provide for more efficient risk taking. This article agrees and goes further to note that, by making the E.U. a more attractive location for investment, the E.C. proposal would put the U.S. at a competitive disadvantage.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"66 1","pages":"737"},"PeriodicalIF":0.0,"publicationDate":"2011-11-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67816186","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":"Building a New Identity: Race, Gangs, and Violence in California Prisons","authors":"Dale Noll","doi":"10.2139/SSRN.2015679","DOIUrl":"https://doi.org/10.2139/SSRN.2015679","url":null,"abstract":"The California Prison system is notorious for its highly racialized environment. A history of numerous instances of prison violence - labeled as 'race riots' - paints a picture of a system where inmates of different races require segregation to prevent brutal beatings, murders, and rapes. For example, following an incident deemed a 'race riot' at the California Correctional Training Facility, North prison, prison officials locked 300 inmates in isolation until inmates complained that their Eighth Amendment and Due Process rights were violated. In 2000, the Pelican Bay State Prison locked down a portion of the prison following a riot, presumed to be racially motivated, involving 300 inmates. In August, 2009, 1,175 inmates were involved in a riot that officials deemed 'stemmed from racial tensions,' in which 249 inmates were injured and seven dorm units, holding 1,300 beds, were destroyed at the California Institution for Men in Chino, California. The media and prison officials point to events similar to these as evidence that California prisons are racially charged. Jurisprudence has traditionally left prison segregation practices to a relaxed standard of review for Equal Protection suits, allowing California prison officials to segregate inmates according to race in double-occupancy cells. Justice Antonin Scalia, in Richmond v. J.A. Croson, wrote 'only a social emergency rising to the level of imminent danger to life and limb - for example, a prison race riot, requiring temporary segregation of inmates . . . can justify an exception to the principle embodied in the Fourteenth Amendment that ‘our Constitution is colorblind.' This viewpoint is consistent with Justice Thomas’s recommended relaxed standard and judicial deference to prison officials who oversee 'prisons that have been a breeding ground for some of the most violent prison gangs in America - all of them organized along racial lines.' Reports of riots, popular movies, and prior court opinions suggest this prison system’s prior practice of initial racial segregating of inmates was a reaction to the racial prejudices and intolerances inmates brought with them to prison. Alternatively, it suggests inmates develop prejudices through prison interactions. This concept led to the practice of segregation in initial housing of inmates. As inmates were introduced to the California prison system, they were placed in cells with inmates according to race or ethnicity.In 2005, the Supreme Court changed the standard to be applied in cases of racial segregation at prisons. In Johnson v. California, Justice O’Connor’s majority held that the proper standard of review was 'strict scrutiny' because the prior deferential standard too easily defended 'rank discrimination' and remanded the case back to the district court for review. The California Department of Corrections ('CDC') at that point settled with the plaintiff, Garrison Johnson, and began implementing policies to eliminate the use of race as a prima","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"66 1","pages":"847"},"PeriodicalIF":0.0,"publicationDate":"2011-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67854728","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":"Empowering The Collaborative Citizen In The Administrative State: A Case Study Of The Federal Communications Commission","authors":"P. Shane","doi":"10.2139/SSRN.1759439","DOIUrl":"https://doi.org/10.2139/SSRN.1759439","url":null,"abstract":"Among the rhetorical themes of the Obama Presidency, none has been more prominent than the call for open, participatory, and collaborative government. The Federal Communication, although not formally bound by the Administration's \"Open Government Directive,\" pledged \"to comply voluntarily with its terms and, when possible, to exceed its targets.\" This article provides a case study of the FCC's first seven months under Chairman Julius Genachowski, chronicling the issues facing \"an agency in the early throes of institutionalizing open, participatory, and collaborative government.\" After reviewing the agency's challenges and initiatives in communicating its message, sharing records and data, and facilitating public input, the article briefly speculates on the political conditions necessary to sustain efforts of this intensity.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"65 1","pages":"483"},"PeriodicalIF":0.0,"publicationDate":"2011-02-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67736249","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 Future of the Administrative Presidency: Turning Administrative Law Inside-Out","authors":"S. Shapiro, R. Wright","doi":"10.2139/SSRN.1738491","DOIUrl":"https://doi.org/10.2139/SSRN.1738491","url":null,"abstract":"The administrative presidency, congressional oversight and judicial review, are efforts to control bureaucratic discretion from outside of the agencies. Administrative law focuses almost exclusively on such \"outside-in\" accountability. Meanwhile, public administration scholars discuss the potential of \"inside-out\" approaches: managerial controls and professionalism. We propose a model of bureaucratic behavior that identifies the ideal conditions for inside-out accountability. By postulating that self-interested and other-regarding motives of bureaucrats can both be present to varying degrees in different agency environments (something that the competing public choice model does not do), our approach allows government redesign to respond to empirical learning in public administration scholarship. This learning suggests overall accountability can be enhanced if the tools of the administrative presidency (political appointments and centralized control) are reduced in favor of enhanced inside-out approaches in appropriate contexts.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"65 1","pages":"577"},"PeriodicalIF":0.0,"publicationDate":"2011-01-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67731331","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":"Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations","authors":"David R. Cleveland","doi":"10.2139/SSRN.1444645","DOIUrl":"https://doi.org/10.2139/SSRN.1444645","url":null,"abstract":"Denying precedential status to unpublished opinions muddles the already unclear law surrounding qualified immunity. Government officials may claim qualified immunity as a defense to claims that they have violated a person’s civil rights. The test is whether they have violated “clearly established law.” The federal circuits differ on whether unpublished opinions may be used in determining clearly established law. This article, Clear as Mud: How the Uncertain Precedential Status of Unpublished Opinions Muddles Qualified Immunity Determinations, argues that unpublished opinions are ideal sources for determining what law is clearly established. The article reviews the purpose of both civil rights actions against government officials and the qualified immunity defense available to such officials. It also analyzes the characteristics of unpublished opinions and finds them, by definition, to be ideal sources to help determine the clearly established law. It then examines the circuit courts’ variation in the use of unpublished opinions in their qualified immunity analyses. Finally, it proposes a resolution to this problematic circuit split through jurisprudential or rulemaking means. Opinions that are issued as unpublished are by definition clearly established law; opinions that make new law or expand or contract existing law must be published under the federal circuit rules. Denying precedential status to unpublished opinions has relegated these opinions to a second class status, which is unjustified and unconstitutional, but also obfuscates their inherent suitability to demonstrate clearly established law.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"65 1","pages":"45"},"PeriodicalIF":0.0,"publicationDate":"2009-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182171","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}