STU Scholarly Works (St. Thomas University)
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To Friend or to Unfriend?: It\u27s Time to Update the Status on What it Means to be Facebook Friends
No full textThis comment analyzes what a Facebook friendship encompasses in the legal profession and focuses on what courts, specifically Florida, recognize this relationship to mean. Part II provides an overview of the process for judicial disqualification and reviews the opinions released by the Florida Judicial Ethics Committee regarding judicial participation on social media. Part III discusses how traditional friendships have been considered in regards to judicial disqualification and compares what other states have understood a Facebook friendship to encompass versus what Florida has concluded. Lastly, Part IV proposes a new Judicial Ethics Opinion that reflects a more modernized understanding of the definition of Facebook friendships and that echoes what the Florida Supreme Court has decreed
Front Matter
No full textFront Matter includes Masthead, Table of Contents for St. Thomas Law Review Volume 31, Issue 2, Spring 2019
Civility, Courtesy, Professionalism and Behaving Responsibly in an Age of Rudeness
No full textAs members of the legal profession, we live out who we are by our actions, and it is time this includes good manners, disciplined behavior, and respect for each other and for the legal system. It is these requirements that are at the core of maintaining and preserving our democratic system. Perhaps it is time to supplement the code of professional responsibility with a code of personal behavior to ensure civility in courts. Toward this end, I propose the following: The Twelve Commandments of Professional Behavio
Are Administrative Law Judges Officers of the State: Constitutional Considerations in the Selection and Tenure of Administrative Law
No full textOne of the hallmarks of the Florida Administrative Procedure Act is the creation of a pool of hearing officers independent from any agency or the direct control of any political figure. Since its substantial revision in 1974, the statute has always provided for the selection and hiring of administrative law judges ( ALJ ) by the Director of the Division of Administrative Hearings. ALJs hear almost every type of case, from licensure denials to environmental permitting challenges. In most cases, the ALJ weighs the evidence and legal arguments before recommending findings of fact, conclusions of law, and proposed final disposition to the agency referring the case. However, ALJs also have statutory authority to enter final, binding orders in challenges to agency rulemaking. Entering a final, binding order, subject only to judicial appeal, is an exercise of the state\u27s sovereign power and authority. Under longstanding Florida constitutional decisions, only an officer, not a public employee, may be delegated part of the sovereign power. This Article first examines Florida law on the nature of offices, and officers, including the constitutional requirements for appointment or election and tenure. The analysis then turns to whether ALJs are officers or employees and, if they are officers, whether the present system of their employment should be reconsidered. This issue is timely, for in the 2017- 2018 legislative sessions the Florida House of Representatives passed bills requiring ALIs to be appointed to four-year terms by the Governor and Cabinet from candidates nominated by an independent commission
A Justice School: Teaching Forced Migration Through Experiential Learning
No full textThis article demonstrates how experiential learning in law school can prepare students for the practice of law and, if done well, instill in them a life-long commitment to social justice. I use my efforts to integrate a public service component into my immigration courses to illustrate this. Despite institutional obstacles encountered along the way, the success of this effort ultimately turned on working collaboratively with student leaders with a shared commitment to equal justice, winning the support of well-placed individuals within our administration, and ensuring that the experience for students was rewarding. Our signature achievement has been the Karnes Pro Bono Project. Teams of students, including ILs, 2Ls and 3Ls, have, on three separate occasions, worked side by side with attorneys and staff from RAICES - the Refugee and Immigrant Center for Education and Legal Services, Texas\u27s leading immigration legal services agency, at the Karnes County family detention center, assisting Central American parents and children through the credible fear screening process and helping them qualify for asylum and release from detention. Not only have the students acquired a deeper understanding of the legal, political, and practical obstacles to asylum faced by refugees at the border. They have had the deeply moving and transformative experience of working with parents and children, hearing their stories, preparing their declarations, helping them at every stage of the credible fear screening process, and learning their fates
A Government by Men, Not Nature: A Natural Law Case for Limits on The Judicial Enforcement of Natural Law and Unenumerated Rights under the Constitution
No full textIt has been rightly said that the quarrel over the relation between natural law and implied rights under the Constitution is ultimately one of whether law consists only of power, as well as a function of our debates over human nature. Although the lesser question of whether the Supreme Court of the United States can make use of natural law reasoning in discerning the existence of a right not expressly enumerated in the Constitution is as old as the instrument itself, the many concerns that motivate it are older than the very republic. Yet, different and often contradictory answers continue to be given both from inside and outside the very natural law tradition. This paper almost exclusively addresses the debate within that tradition. In what follows, my aim is to make a plausible argument for the following proposition, to wit: that a certain natural law conception of the rule of law in the United States allows for-but does not require-the judicial enforcement of those natural law principles that are reasonably traceable to the text of the Constitution, but not of those that are not so traceable. As I will show, a first necessary corollary of this conclusion is that, from such a natural law perspective, only a version of originalism is appropriate as a method of judicial interpretation and construction. A second corollary, however, is that only a moral reading of the Constitution does justice to its language, structure, purpose, and underlying values. Although this paper is concerned with natural law reasoning as the preferred type of moral reading, the proposition I defend and its corollaries are not compatible with this tradition alone, but also with other moral reasoning schools-the comparative merits of which vis-a-vis natural law lie beyond the scope of this paper. I treat natural law reasoning as preferred only because my aim is to assess and develop the arguments found within the intramural debate on these issues. Supporting this proposition will require that I first appropriately frame the issue and focus my inquiry. As seen below, the framing of this issue presupposes the validity of two propositions: (1) that some version of natural law reasoning is correct; and (2) that such a version of natural law reasoning both legitimizes and limits the power of judicial review generally. Although these two propositions are analyzed, their overall truth is generally the work of postulation for purposes of this paper. Moreover, purporting to critically develop the work of Robert George in this context, I also resort to three questions to narrow the problem addressed: (1) Can the power of judicial review generally be grounded in natural law reasoning?; (2) Does the Constitution allow for the judicial enforcement of natural law principles and rights as part ofjudicial review?; and (3) Are there any limits to such an enforcement? Although the answers to these questions are the building blocks of my thesis, they do not explain or translate into the structure of the paper. In Part II, I introduce the issue by framing it by the concept of rule of law, as illustrated by the debate between two natural law writers: Robert George and Joseph Cascarelli. In Part III, I consider the relationship between the natural law tradition and the Constitution as it was framed. In Part IV, I explore the relationship between natural law and the concept of rule of law, focusing on Aquinas\u27 definition. In Part V, I explain why I believe that a natural law conception of the rule of law necessitates that the Judiciary subscribe to some form of textualism and originalism in its interpretation of the Constitution. Finally, in Part VI, I offer some concluding remarks, observing that it is in the best interest of natural lawyers to limit any judicial enforcement of natural law principles
Florida Needs to Protect Grandma & Grandpa
No full textThis Comment discusses how amending Florida Senate Bill 896 ( S.B. 896 ) to incorporate more specific language regarding who can consent to electronic monitoring devices in the residents\u27 rooms will help it pass and become part of Section 400.022, Florida Statutes. Part II will examine the current law in Florida and the attempts to amend it. Part III will explain that allowing electronic monitoring devices is in the best interest of both the resident and the nursing home, and will touch upon issues regarding expectations of privacy. Lastly, Part IV proposes to change the language of S.B. 896 so that it is more likely to be passed
Doing Well by Being Good: How U.S. Labor Law Encourages Employer Good Faith Behavior
No full textThis essay will discuss ways in which that duty of good faith bargaining is enforced and how a series of decisions by the courts and the National Labor Relations Board designed to increase employer power and flexibility have inadvertently encouraged and compelled employers to bargain in good faith by conditioning use of their most powerful weapons on their participation in good faith bargaining. The presence of economic weapons held in reserve is a powerful negotiating lever and an employer which has forfeited the ability to use weapons such a permanent striker replacement, lockout, and unilateral change will have substantially less leverage at the bargaining table and risk economic peril if it seeks to use these tools without having bargained in good faith. Because the law of good faith bargaining is complex, nuanced and difficult to define at the margins, this reward system also discourages borderline bargaining behavior. This essay will first provide an introduction to legal rules and concepts governing private sector collective bargaining under the National Labor Relations Act. The union\u27s status as exclusive representative requires the employer to bargain solely with the union that represents a majority of employees in the relevant bargaining unit. Exclusive representative status gives the union authority to bind all employees in the unit, whether union members or not, to the terms of any resultant collective bargaining agreement. The statutory requirement of good faith bargaining applicable to both employers and unions will be explored as will the component concept of mandatory and permissive subjects of bargaining, a courtcreated construct that defines and limits the range of employmentrelated topics over which the parties are compelled to bargain in good faith. This essay will then discuss the parties\u27 use of economic weapons during bargaining and the importance of those employer weapons which are conditioned on good faith bargaining such as unilateral changes to working conditions, permanently replacing striking employees, locking out employees to inflict bargaining pressure and even withdrawing recognition from unions which have provably lost employee majority support. Finally, the essay will demonstrate the practical effect of conditioning employer use of economic weapons, such as unilateral change, permanent replacement of strikers, locking out unit employees and withdrawal of recognition on good faith bargaining. Employers who wish to retain the opportunity to use or threaten to use these weapons, whether for bargaining leverage or actual use, will have to come to the bargaining table, stay there, provide the union information it needs for bargaining and, hopefully, participate in honest communication and an exchange of proposals designed to help the parties reach successful agreement and maintain labor peace. Although it would be naive to expect such positive results in every case, the hope is that a regime that requires careful listening, respectful responses and discussions, and the submission of legitimate counterproposals may lead to solutions that meet the needs of all parties and foster labor peace without the need for strike or lockout
Law or Justice? What Future for the Legal Profession?
No full textIs the future of our profession law or justice? There is a lot of law in our profession. There is some charity and some generosity. Justice? Not nearly enough to suggest it is at the core of our profession, our mission, or our future