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The Electoral Count Mess: The Electoral Count Act of 1887 is Unconstitutional, and other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes
Get PDFIn this essay, and in light of the controversy that arose in the wake of the 2020 presidential election, we explain the constitutional process for counting electoral votes. In short, every four years, the Twelfth Amendment requires the President of the Senate (usually the Vice President of the United States) to open certificates provided by state presidential electors and count the votes contained therein. The Constitution allows no role for Congress in this process, and thus, the provisions of the Electoral Count Act purporting to grant Congress the power, by concurrent resolution, to reject a state’s electoral votes, is unconstitutional. Further, the objections raised to two states’ electoral votes on January 6, 2021, were not proper within the terms of the Act, and therefore, even if Congress has the power specified in the Act, congressional action rejecting states’ electoral votes would have been contrary to law. While state executive or state judicially ordered departures from the requirements of state election laws in presidential elections might violate the federal Constitution’s requirement that electors be chosen as specified by state legislatures, determining whether this has taken place is much more complicated than simply examining the language of state election statutes. We suggest that making this determination requires a careful examination of state interpretation traditions that we decline to undertake in this brief essay on the constitutional process for counting electoral votes
A New Methodology for the Analysis of Visuals in Legal Works
Get PDFThe goal of this Article is to introduce a comprehensive methodology for the analysis of visuals used for communication in legal works, by which I mean transactional and litigation documents, legal instruments, primary and secondary sources of law, and legal informational materials. To date, the scholarship on visuals in legal communications has been heavily descriptive, with some forays into the ethical and practical considerations of the use of “visualized” legal works. No one has yet devised a comprehensive analytical methodology that draws upon the disciplines of visual literacy, visual cultural studies, visual rhetoric, and mise en scène analysis to evaluate the strengths and weaknesses of actual examples of highly visual legal documents and critique their efficacy and propriety in a variety of legal settings. This Article will fill that gap in the literature. The new methodology evaluates the following aspects of visual legal works:
• Immediate Visual Context
- Analysis of Meaning
-Taxonomy of Purpose and Function
• Immediate Verbal Context
• Visual Cultural Context
• Mise en Scène and the Rhetorical Topic of Arrangement
• Visual Rhetoric and the Ethical and Professional
Propriety of the Work. Lawyers, judges, and law students typically do not receive training in visual literacy regarding the reading and interpretation of visual images, and much less so in the design principles required to create the most effective visuals for legal communications and legal instruments, such as contracts. This condition persists in spite of the fact that visual images can communicate across language and cultural barriers, taking advantage of the enormous speed and power of visual communication. In equal measure, knowledge and understanding of these principles will enable lawyers to design and use effective visuals, and to challenge or respond to the visual legal communications proffered by their opponents in litigation or negotiation, or their counterparts in a transaction. My intent in this Article and the methodology it presents is to examine visual elements as visuals, not as a translation or alternative form of verbal communication. The approach of trying to translate visual works into verbal arguments or verbal elements of legal reasoning limits the scope and the effectiveness of the visual works, because communication through visuals employs a separate visual language, and not in a literal or verbal sense. The methodology proposed in this Article is a set of tools that can help verbally oriented law-trained writers to become better readers, evaluators, and creators of visual communications in the law
Recognizing a Fundamental Right to a Clean Environment: Why the Juliana Court got it Wrong and How to Address the Issue Moving Forward
Get PDFAs the existential threat of climate change becomes increasingly prevalent, U.S. plaintiffs, lawyers, and activists have begun seeking redress in federal courts arguing for recognition of a constitutional right to a clean environment. Recently, in Juliana v. United States, the Ninth Circuit explicitly recognized the grave threat of climate change for the health, well-being, and security of the American people and the nation as a whole. Additionally, the court found that the U.S. government has contributed to climate change through both inaction and policy decisions that promote the use of fossil fuels. The plaintiffs claimed that they had a constitutional right to a clean and safe environment. The court, however, side-stepped the constitutional question; even assuming Americans have a constitutional right to a clean environment, the court concluded that the plaintiffs lacked standing to pursue their claims. Specifically, any remedy, in the majority’s view, would necessarily require a judicial encroachment on the legislative branch. The dissent vehemently disagreed with this conclusion and offered an analysis supporting a constitutional right to a clean environment. Given the scientific consensus that climate change is a grave and increasing threat to the nation and the world at large, litigants will likely continue arguing for a constitutional right to a clean environment in federal courts. Accordingly, the federal judiciary should re-consider how substantive due process analysis might actually support a constitutional right to a clean environment. This paper argues that it does and more importantly, the federal judiciary can effectuate a remedy without violating separation of powers principles. Federal courts need only consider some of the most important Supreme Court cases in recent history and a turn to international law can provide additional, persuasive support to address the specific separation of powers problem. What will emerge is a framework the federal courts can employ when dealing with constitutional claims to a clean environment. An approach that is necessary, and an approach that works
Corporate Criminal Liability
No full textJosé Roberto Pazmiño Ruiz is a partner of the Pazmiño & Pazmiño Law Firm as a consultant in criminal matters and is a consultant of Compliance & Criminal Defense, in Guayaquil–Quito, Ecuador. His thesis focuses on the evolution of corporations’ reactions as an assessment mechanism for corporate criminal liability in the European continental framework, with a focus in Spain. As a matter of comparative law, the thesis will predominantly take into consideration the American and German doctrines.https://ecollections.law.fiu.edu/visiting-researcher-profiles/1034/thumbnail.jp
FROM THE GREAT RECESSION TO THE COVID-19 PANDEMIC: A FINANCIAL HISTORY OF THE UNITED STATES 2010-2020
No full texthttps://ecollections.law.fiu.edu/faculty_books/1294/thumbnail.jp
The COVID Care Crisis and its Implications for Legal Academia
Get PDFFrom February 2020, when the SARS COVID virus began to have global effects until now, the world has been in the midst of the worst viral pandemic in recent memory. No country was prepared for the rapid escalation of the spread of the virus worldwide that has taken nearly five million lives globally and over 700,000 in the United States alone. Even in March and April 2020, although cities had begun to quarantine and lockdown, none could have predicted the surges of cases and the longevity of the pandemic. Schools and businesses were closed only to open again and close again as the unpredictable virus took its course and as we all tried to haphazardly change to keep up. For many families, parents working and children learning from home utterly collapsed the private/public distinctions that allowed for some semblance of work-life balance. Others who were deemed “essential workers” like medical professionals, grocery store workers, delivery and postal workers, earning a livelihood literally meant risking one’s life and the lives of near family to earn a wage and to provide critical services. It is safe to say that the pandemic upended most of our lives
Stereotypes, Sexism, and Superhuman Faculty
Get PDFThis symposium article explores how law professors with caretaking responsibilities struggled so greatly during the first year of the COVID-19 pandemic. Because legal academia prioritizes masculine ideals of competence over warmth, faculty were expected to suppress their emotions and mental health needs in order to maintain the appearance of competence. While students were allowed to be seen as vulnerable individuals needing accommodations, we did not extend this same compassion to our faculty colleagues. To explain why the treatment was so disparate, I incorporated existing research on the stereotype content model (SCM) and psychological theories of dehumanization. These theories help to explain why many faculty with young children suffered in crushing silence during the pandemic while taking on new and overwhelming caregiving obligations
The Many Lives of Big Law: Three Decades in the Evolution of Large Law Firms, in Lawyers in 21st-Century Societies, vol. 2: Comparisons and Theories
No full texthttps://ecollections.law.fiu.edu/faculty_books/1298/thumbnail.jp
Zero to Hero: The Unavailability of Bivens and Why Congress Should Intervene
Get PDFn Bivens, the Supreme Court held that although 42 U.S.C. § 1983 is silent as to its application to federal agents, the plaintiff had an implied cause of action against federal agents for violation of his constitutional rights. Since this decision, the Court has heavily narrowed the implied Bivenscause of action and punted the decision to Congress to codify a cause of action against federal agents. As the law currently stands, plaintiffs must overcome a confusing framework that conflates constitutional merits with whether a cause of action exists, affords extreme deference to executive decisions, and is presumptively unavailable. In June of 2020, federal agents were deployed to cities throughout the United States to end recurring protests against police brutality and systemic racism. Federal agents used excessive force to remove protestors, resulting in several lawsuits. However, because of Bivens’narrow application, a remedy is unavailable. In contrast, the plaintiffs could sue if officers acting under color of state or local law had used excessive force, using § 1983 as a vehicle to remedy their injuries. Whether an agent acts under color of state or federal law should not be the determining factor in deciding whether a remedy is available. This comment will discuss the flaws in the current Bivensframework, recognizing why a codified Bivensis necessary. Further, this comment will address how a codified Bivenswould look, analyzing: who could be sued, for what rights a codified Bivenswould apply, and how a codified Bivenswould interact with other areas of civil rights law
Differential Treatment of Sexual Assault Cases by US Army Law Enforcement Personnel
No full textUsing data received through the Freedom of Information Act, this observational study explores whether Army law enforcement personnel do not find probable cause in sexual assault cases at higher rates than in other serious crimes. The study compares sexual assaults, homicides, robberies, and assaults in the Army from 2008 to 2014 and July 2015 to 2017. For the first period, the study finds that the odds are 5.30 times greater that Army law enforcement will not find probable cause in a sexual assault case when compared to other crimes, and for the second period the odds are 4.39 times greater