STU Scholarly Works (St. Thomas University)
Not a member yet
1001 research outputs found
Sort by
The Controlling Shareholder Enforcement Gap
No full textThe regulation of controlling shareholder related-party transactions is one of corporate law\u27s animating concerns. A recent Chancery Court decision extends the double approval framework endorsed by the Delaware Supreme Court—independent director committees and a majority of the minority shareholders—to non-freezeout transactions. This article explains why the Chancery Court\u27s innovation does not decrease the risk faced by minority shareholders. Subjecting a transaction to the double approval framework is a voluntary decision. Transaction planners will willingly traverse this path if the benefits outweigh the loss in deal certainty and attendant costs. When almost every freezeout is challenged in court, the voluntary application of this framework is the logical outcome. The calculus in the non-freezeout context leads to a different result. Non-freezeouts must be challenged by a derivative lawsuit. The procedural hurdles inherent in the derivative mechanism affect both the demand for the ratification framework and the incentive to comply. Without a tangible threat of a lawsuit to coax voluntary compliance in the non-freezeout setting, transaction planners have nothing to gain by subjecting the deal to the double approval gauntlet. This article\u27s analysis reveals a large gap in the enforcement of self-dealing transactions. Recent high-profile litigation exposes questionable adherence to the double approval framework for obviously conflicted non-freezeout transactions. The paucity of derivative lawsuits foretells a troubling fate for similar transactions at less enticing litigation targets. Worse yet, the superficial step toward improved minority shareholder protection stifles the discussion on additional reform
The ILC at Its 70th Anniversary: Its Role in International Law and Its Impact on U.S. Jurisprudence
No full textIt is the International Law Commission\u27s ( ILC ) birthday celebration, and one is expected to bring presents to such events. As an international law scholar and an outsider to the institution, my best presents are hopefully constructive comments in the nature of analysis, critique, suggestions, and positive statements of encouragement. Such comments aim to be informative, practical, and helpful. By necessity, all of them depend on one\u27s perspective, the role that one perceives a lawyer should have in society, one\u27s observational standpoint, one\u27s jurisprudence, etc. Most of our perspectives derive from a positivist framework.\u27 Even if we assume the role of a problem-solver, as in the respected New Haven Approach to law, We still need to deal with the practical needs of the legal environment. The application of law often entails-and even requires-at least some of the concerns and analytical tools of positivism. Legislation and other decision-making processes generally, however, are different and not wholly amenable to such an approach; that is where New Haven displays its greatest strength. From this perspective, we take stock of the birthday kid and its accomplishments-the ILC. It is a creature of the states and a part of the optimistic San Francisco construct of the world community after the cataclysm of World War II. It was more the beginning of something than the culmination of various antecedents, and it has subsequently made a greater number of inroads than the few discernible paths leading to its creation. In what follows, I will first make some observations on the history of the ILC\u27s twofold institutional mandate. Second, I will present the results of empirical research on the direct and indirect impact of the ILC on U.S. jurisprudence and legal scholarship. Lastly, I will furnish the reader with an assessment of the ILC\u27s current challenges in fulfilling its mandate to codify and progressively develop international law and some recommendations to address them
A Justice School: Teaching Forced Migration Through Experiential Learning
No full textThe need for committed and competent public interest lawyers has never been greater. We are at a unique juncture in U.S. history where there is both a supply and demand for social justice lawyers. Law schools, however, still fall short in their support and preparation of students who want to be public interest lawyers. Legal education still tends to reproduce social hierarchies, channeling top students into high paying jobs at big firms, with only the very top and most persistent students qualifying for judicial clerkships or a handful of prestigious fellowships. It is vital that students see from Day One of law school that they can use their legal training to make a positive difference in the world, and that throughout their three years of law school they learn the doctrine, develop the litigation skills, and have the kinds of experiential opportunities that will prepare them for this work.This 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. The success of these efforts ultimately turns on working collaboratively with student leaders with a shared commitment to immigrant justice, winning the support of key people in the administration, and ensuring that the experience for students is both emotionally and intellectually rewarding. Our signature achievement was the Karnes Pro Bono Project. Teams of students 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, at the Karnes 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 meeting with detained families seeking asylum, hearing their testimonials, preparing their statements, counseling them, helping them through the credible fear screening process, and ultimately learning their fates
Welcome to Trump\u27s Ice Age: Violations of Undocumented Immigrants\u27 Fourth Amendment Rights During Workplace Raids
No full textThis Comment addresses the implications of ICE agents violating Fourth Amendment rights of undocumented immigrants who have been unreasonably seized during workplace raids. Part II discusses how the Fourth Amendment protections extend to the workplace, as well as the influence of ICE on immigration law and how the Fourth Amendment applies in the immigration context. Part IH addresses how Trump\u27s antiimmigrant oratory has encouraged ICE to conduct workplace raids, which result in egregious violations of the Fourth Amendment. Part III further addresses the effect of the holding in Delgado on workplace raids and how ICE has conducted the raids in violation of the Fourth Amendment under Trump\u27s presidency. Part IV proposes an introduction of a statute that imposes penalties on ICE agents who engage in unlawful seizures of undocumented immigrants and a Bivens remedy for those undocumented immigrants. Part V concludes by discussing how imposing a penalty on government agents and providing a Bivens remedy may deter the government from engaging in further violations of the Fourth Amendment
Battle of the Bayou: Placing a Receiver in the Right Position During a Bankruptcy Proceeding
No full textInvestment Manager, Sam Israel, launched the Bayou Group LLC, a hedge fund, hoping to produce large returns for high net worth investors. After months of losses, it became clear to Israel that Bayou would never garner the types of returns he had promised investors. Instead of altering strategies or closing Bayou, Israel decided to convert Bayou into a Ponzi scheme. When Ponzi schemes fail, they present unique challenges for courts, regulators, creditors, and interested parties. One choice stakeholders will have to make is whether to appoint a receiver to marshal assets and seek a recovery for defrauded investors and creditors, or whether to place the Ponzi scheme into bankruptcy and seek the appointment of a trustee. Typically, receivers are required to turn over possession to a trustee upon filing for bankruptcy. However, the United States Court of Appeals for the Second Circuit changed this rule when it decided In re Bayou Group, LLC. This Note examines when a receiver is not required to turn over possession to a bankruptcy trustee. The Introduction discusses Bayou Group. Part I of this Note discusses the challenges of Ponzi scheme bankruptcies, the appointment of a receiver, and the app ointment of a bankruptcy trustee. Part II discusses the Bayou framework. Part III discusses receivership after Bayou. Part IV discusses how Bayou creates value for bankruptcy estates and when courts are most likely to extend Bayou. This Note concludes by summarizing the importance of the Bayou decision
A Therapeutic Jurisprudence Analysis of Government’s Directives on Student to Student Campus Rape
No full textThe cacophony is unnerving. Voices are rife with outrage. Strident demands come from every perspective and every constituency. The problem: student to student campus rape at U.S. colleges and universities, and the government\u27s approach to that problem. Much attention is deservedly focused on the Department of Education\u27s Office for Civil Rights\u27 now rescinded Dear Colleague Letter of April 4, 2011, (the DCL ),\u27 together with the also rescinded Questions and Answers on Title IX and Sexual Violence, issued in 2014 during the Obama Administration (the 2014 Q&A ), versus the Department of Education\u27s Office for Civil Rights\u27 Letter dated September 22, 2017 rescinding the DCL and 2014 Q&A (the Jackson Letter ) and the Q&A on Campus Sexual Misconduct that was issued the same day (the 2017 Q&A ). The Jackson Letter indicated an intention to develop another approach through the rulemaking mechanism.\u27 If the process is to be revised, how can it be improved? There is absolutely no justification for Person A to take sexual advantage of Person B. Rape and rapists are condemned almost universally by society. Thanks to student activism and media attention, the problem of student to student rape is being exposed. We are now embroiled in controversy over how U.S. colleges and universities should deal with reports of non-consensual sex. If there is to be an improved new approach to universities\u27 responsibilities with respect to campus sexual misconduct, it is critical to analyze government\u27s now rescinded approach under the DCL/2014 Q&A to identify and preserve its strengths, and to uncover and correct its shortcomings. Analysis should be performed under a variety of legal philosophies. In what may be the first formally acknowledged foray of therapeutic jurisprudence (sometimes referred to as TJ ) into higher education law, this article examines the investigation and hearing process prior to the rescission of the DCL/2014 Q&A, (the DCL Approach ) and the intersection of that process with criminal law. This article then goes on to discuss the next steps in designing an improved process. Therapeutic jurisprudence is a jurisprudential philosophy and analytic tool that examines the impact of law and legal processes on the emotional and related physical wellbeing of the persons affected by those laws and processes. The problem of student to student rape, and the Office for Civil Rights\u27 ( OCR ) processes for universities to respond, are both fraught with emotional and related physical impacts to the parties allegedly involved in such incidents, and to the entire university community. The issues produce emotional reaction and emotional reasoning. Therapeutic jurisprudence is well-suited to quiet the emotionality and allow rational step-by-step examination that does not banish human emotion from legal reasoning. It allows emotion to inform and enrich the analysis, without controlling it. The therapeutic jurisprudence analysis in this article reveals that, in most respects, the DCL Approach is refreshingly more therapeutic to survivor/complainants than many previous university practices that exacerbated survivors\u27 suffering. It is not wholly free of antitherapeutic possibilities, but generally it is admirably consistent with current learning on how best to facilitate the recovery of survivors of sexual assault, particularly rape. With respect to those accused (respondents), therapeutic jurisprudence analysis reveals that the DCL Approach\u27s preinvestigation, investigation and hearing process, although therapeutic in some respects, is highly antitherapeutic for respondents, disproportionately so, both in design and in actual application. The antitherapeutic impacts begin as soon as a report is received, even before an investigation is instituted. The most antitherapeutic impacts, among many for respondents, arise from a serious design flaw in the process: the failure to align with the realities of criminal law, thus creating an untenably antitherapeutic catch-22 for respondents. Neither these findings, nor therapeutic jurisprudence theory requires that therapeutic jurisprudence alone dictate the revisions to the process. Therapeutic jurisprudence theory holds that sometimes other conflicting norms can outweigh therapeutic/antitherapeutic concerns. It insists, however, that attention be paid to therapeutic versus antitherapeutic consequences to enable a more precise weighing of competing values to achieve optimal laws and legal processes. This article supplies the therapeutic jurisprudence analysis needed for such precise weighing so that the process can be refined accordingly. Fortunately, the problem of campus rape finally has come to the attention of the public, and universities recognize that they must forthrightly address the problem from both the moral and public image perspectives. There is a significant level of buy in at universities. The Jackson Letter and 2017 Q&A create opportunities for carefully designed refinements to be piloted
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 13 (2018)
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 31, Issue 1, Fall 2022
Driven to Distracted Driving in Florida
No full textThis Comment examines the roadblocks that are stopping Florida from having an effective enforcement of Florida\u27s texting while driving ban. Part II discusses the meaning and dangers of distracted driving. This part also focuses on Florida\u27s legislative response to texting while driving by examining the current cellphone legislation in Florida. Part III specifically addresses why Florida\u27s statute falls short from deterring Florida drivers from distracted driving. In addition, this part addresses why Florida has been resistant to proposed legislation to change Florida\u27s current law. Finally, Part IV proposes amendments to Florida\u27s law that will best allow Florida to deter drivers from distracted driving