University of Miami law review最新文献

{"title":"Rough Waters for the Ratings Companies: Should the Securities Ratings Companies Be Held Liable for Investor Reliance in the Wake of the Real Estate Meltdown of 2007-2008?","authors":"K. W. Nelson","doi":"10.2139/SSRN.1430552","DOIUrl":"https://doi.org/10.2139/SSRN.1430552","url":null,"abstract":"In the wake of the Real Estate market meltdown and the \"Great Recession\" that followed, this note focuses on whether securities ratings companies, such as Standard & Poor’s, Fitch, and Moody’s, should be held liable to the investors of residential mortgage backed securities (also referred to as “RMBS”). These investors relied on the ratings only to have the value of those securities decrease significantly due to real estate market downturn and subsequent re-rating of those securities by the ratings companies. The focus of this analysis will be on the liability of the securities ratings companies under both contract and tort theories. Specifically, the potential liability will be analyzed under the doctrine of promissory estoppel in contracts and under an extension of negligence and products liability theories in torts.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"63 1","pages":"1177"},"PeriodicalIF":0.0,"publicationDate":"2009-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68180374","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":"Memory Lost: Brown v. Board and the Constitutional Economy of Liberty and Race","authors":"K. Casebeer","doi":"10.2139/SSRN.1304704","DOIUrl":"https://doi.org/10.2139/SSRN.1304704","url":null,"abstract":"This article shows how race impacts the concept of Liberty in Supreme Court Jurisprudence over four periods of US History to reinforce a dominant political economy. It shows how the Court's present political economy blinds us to the real judicial context of Brown v. Board of Ed. thereby reinforcing anti affirmative action ideas and racial segregation.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"63 1","pages":"537"},"PeriodicalIF":0.0,"publicationDate":"2008-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68159861","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":"Making Lemonade : A New Approach to Evaluating Evolution Disclaimers Under the Establishment Clause","authors":"Louis J. Virelli","doi":"10.2139/SSRN.1127272","DOIUrl":"https://doi.org/10.2139/SSRN.1127272","url":null,"abstract":"The debate over evolution instruction in public schools has become one of the most important and contentious debates in America. At the heart of that debate is the controversy over the use of evolution disclaimers, statements that challenge the veracity of evolution as an explanation of human origins. In evaluating the constitutionality of these disclaimers under the Establishment Clause, courts have applied a variety of different standards, including the three-part test articulated by the Supreme Court in Lemon v. Kurtzman. These standards, however, all fail to adequately reflect the proper scope of the Establishment Clause by being either overbroad, under-inclusive, or both. This problem is magnified by the recent development of disclaimers that are facially neutral with regard to religion. The emergence of facially neutral disclaimers necessitates a new standard that is free of the shortcomings of preexisting doctrine while offering a consistent and reliable method of evaluating future generations of disclaimers under the Establishment Clause. This Article proposes such a standard, modeled on the disparate impact test used to evaluate facially neutral discriminatory statutes under the Fifth and Fourteenth Amendments. It concludes that the disparate impact model constitutes a stable, objective approach that not only alleviates the weaknesses of existing Establishment Clause doctrine, but brings needed structure to an active and important area of law.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"60 1","pages":"423"},"PeriodicalIF":0.0,"publicationDate":"2008-05-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68144783","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":"Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas","authors":"A. Ciolli","doi":"10.2139/ssrn.1101910","DOIUrl":"https://doi.org/10.2139/ssrn.1101910","url":null,"abstract":"The popularization of the Internet has ensured that, for the first time in human history, speech is in a position where it can become truly free. In 1996 Congress, hoping to preserve and promote a vibrant and competitive free marketplace of ideas on the Internet, passed Section 230 of the Communications Decency Act, a controversial statute that grants the owners of private online forums and other Internet intermediaries unprecedented immunity from liability for defamation and related torts committed by third party users. Since then, a fierce debate has raged over how to strike the proper balance between the seemingly competing values of promoting free speech and compensating victims of Internet defamation.This Article argues that this conflict between speech and victim compensation is largely illusory, persisting primarily due to misconceptions about the Internet and nostalgia for the common law. Since these values do not inherently conflict with each other, it is unnecessary to strike a balance between them because Congress can pass legislation enhancing both values without detracting from either. Congress, in order to account for the sudden and unexpected transition from the walled garden intermediaries of the 1990s to the Web 2.0 intermediaries of today, should amend Section 230 to include an attorneys' fee-shifting provision in order to provide the typical Web 2.0 intermediary with an incentive to protect the speech of its users. Similarly, Congress or state governments should create the tort of no-fault defamation to provide the majority of defamation victims with a more cost-effective and efficient means of achieving the vindication they desire. Finally, Congress should consider instituting an insurance scheme or other system to provide compensation to those who have suffered tangible economic loss or irreparable harm as a result of Internet defamation, as well as pass legislation that would reduce the potential negative effects of defamatory Internet speech. These solutions whether implemented individually or as a package would result in a substantial improvement over the status quo, and also produce better, more efficient outcomes than alternate proposals that seek to promote victim compensation at the expense of speech or vice versa.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"63 1","pages":"137"},"PeriodicalIF":0.0,"publicationDate":"2008-03-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68138592","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 Bush Regime from Elections to Detentions: A Moral Economy of Carl Schmitt and Human Rights","authors":"David Abraham","doi":"10.2139/SSRN.942865","DOIUrl":"https://doi.org/10.2139/SSRN.942865","url":null,"abstract":"This essay, presented in Vienna at an international conference on the Bush Administration and America's Future and to be published in updated form, analyzes the Bush administration through two lenses: one developed by Marx in his analysis of the rise of Louis Napoleon Bonaparte, and the other Hans Mommsen's analysis of the happenstantial construction of Hitler's dictatorship. The essay moves through a look at the coup of 22 November 2000 and then proceeds to look at the analogous dynamics of the Reichstagsbrand/Ermaechtigungsgesetz and 9/11-USA Patriot Act. Next, the essay examines the role of sovereignty in states of exception and the role of the decider, as developed from the Weimar Constitution's Art. 48 and Carl Schmitt to John Yoo. Finally, the essay touches upon the ironic and pernicious role of radical human rights discourses in abetting an imperialist agenda. The essay concludes by considering whether the legal, moral, political, and social construct of the West, which the US has shared with Europe for over half a century, has now come to an end in an era of unchallenged, if ineffective, American hegemony.","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"62 1","pages":"249"},"PeriodicalIF":0.0,"publicationDate":"2007-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.942865","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67900794","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":"Dworkin in the Desert of the Real","authors":"D. G. Carlson","doi":"10.2139/SSRN.681554","DOIUrl":"https://doi.org/10.2139/SSRN.681554","url":null,"abstract":"Dworkin's positivist critics have charged that he errs in supposing that the philosophy of law and the philosophy of language have any connection. This paper argues that Dworkin is exactly right to deny a split between law and language. But there is an incommensurability in Dworkin's jurisprudence which Dworkin is well aware of: the split between theory and practice, between being and doing. This incommensurability means that Dworkin's jurisprudence is of the highest interest to law and psychoanalysis. It also makes Dworkin the noir philosopher of our age, as adjudication is subjected to what psychoanalysis calls the \"ethics of the real.\"","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"60 1","pages":"505"},"PeriodicalIF":0.0,"publicationDate":"2005-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67797576","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":"Unnatural Rights: Hegel and Intellectual Property","authors":"J. Schroeder","doi":"10.2139/SSRN.518182","DOIUrl":"https://doi.org/10.2139/SSRN.518182","url":null,"abstract":"Many proponents of intellectual property law seek refuge in a personality theory of property associated with G.W.F. Hegel. This theory seems to protect intellectual property from potential attacks by a utilitarian analysis that would recognizes property only contingently insofar as it furthers society's goals of utility or wealth maximization. Personality theory, in contrast, supposedly offers a principled argument that intellectual property right must be recognized by a just state, regardless of efficiency considerations. Personality theory also seems to protect intellectual property from assault by critics who maintain that it is not a form of \"true\" property at all. Finally, personality theory has also been used to support an argument for heightened protection of intellectual property beyond that given to other forms of property - the Continental \"moral\" right of artists in their creations is an example. Unfortunately, references to Hegel by personality theorists are almost always incorrect. Prof. Schroeder seeks to save Hegel from the misperceptions of his well-meaning proponents. It is true that Hegel thinks that a modern constitutional state should establish a minimal private property regime because property plays a role in the constitution of personality. It is not true, however, that Hegel thought that society is required to respect any specific type of property or any specific claim of ownership. It is also true that Hegel thought that intellectual property could be analyzed as a form of \"true\" property and not as a sui generis right that is merely analogous to property. However, it is not true that Hegel ascribes any special role to intellectual property. As such, Hegel's theory can not be used to support the proposition that the state must recognize intellectual property claims, only that it may do so. Moreover, the Continental moral right of artists is inconsistent with an Hegelian analysis of property. In contrast to a widespread misconception, Hegel completely rejects any concept of natural law generally, and any natural right of property, specifically. Indeed, Hegel considers the expression \"natural rights\" to be an oxymoron. To Hegel, nature is unfree and legal rights are artificial constructs created as a means of actualizing freedom by escaping the causal chains of nature. Consequently, rights are not merely not natural, they are unnatural. Having no recourse to nature, Hegel justifies the concept of property on purely functional grounds - the role it plays in the modern state. Specifically, property is necessary for the development of one limited aspect of personality that I call \"legal subjectivity.\" Legal subjectivity is the mere capacity to respect the rule of law - nothing more. This is a precondition to the liberal state which is supposed to be governed by the rule of law, not the rule of men, as the feudal state was. Hegel's property analysis does not directly relate to any other aspect of personality - and certainly not ","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"60 1","pages":"453"},"PeriodicalIF":0.0,"publicationDate":"2004-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67756020","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":"Gaining/Losing Perspective on the Law, or Keeping Visual Evidence in Perspective","authors":"Christopher Buccafusco","doi":"10.4324/9781315089645-15","DOIUrl":"https://doi.org/10.4324/9781315089645-15","url":null,"abstract":"","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"58 1","pages":"609"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70628010","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 Constitution of Liberal Order at the Troubled Beginnings of the Modern State","authors":"R. Gordon","doi":"10.1017/9781108147668.012","DOIUrl":"https://doi.org/10.1017/9781108147668.012","url":null,"abstract":"","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"58 1","pages":"373"},"PeriodicalIF":0.0,"publicationDate":"2004-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1017/9781108147668.012","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56915254","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":"Supporting the work of lesser geniuses: an argument for removing obstructions to human embryonic stem cell research.","authors":"Christopher D Hazuka","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":83419,"journal":{"name":"University of Miami law review","volume":"57 1","pages":"157-220"},"PeriodicalIF":0.0,"publicationDate":"2002-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"24530564","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}