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Front Matter
No full textFront Matter includes the Table of Contents for St. Thomas Law Review Volume 30, Issue 2, Spring 2018
Slavery, Religion and Reconciliation
No full textSanta Fe is a beautiful, culturally rich and diverse city. I am a native Santa Fean, and my mixed Hispanic/Indian/Anglo/African blood reflects the ethnic makeup of the region. Each year the city celebrates a Fiesta. One component, the Entrada, celebrates the peaceful re-conquest of the Indigenous people by the Spanish colonizers. Controversy has arisen in recent years as activists challenge the memorialization of a tradition that they feel represents slavery and brutality. Linking their struggle to recent efforts to remove memorials to the Confederacy, they have sought to physically block the re-enactment, leading to arrests, collateral conflict, and the very real threat of future violence. How do we move forward as a society with the legacy of slavery that built this region and country? This article examines the historical, sociological, legal and religious conflict surrounding the Entrada. It creates a model for addressing a reconciliation not only of that conflict, but also the broader controversies regarding memorials, monuments and re-enactments of our complicated inheritance of slavery and conquest
Financial Consumer Protection in Korea
No full textBook: An International Comparison of Financial Consumer Protection
Chapter Description:
Although not in adopted in any law in Korea yet, the term ‘financial consumer’, has been widely and increasingly used by the government, policy circles and the financial industry in Korea since 2010, when the Korean Academy of Financial Consumers (hereinafter “KAFC”) was set up probably for the first time in its kind in the world.https://scholarship.stu.edu/faculty_book_chapters/1045/thumbnail.jp
Global Water Crisis and Human Rights: A Glass Half Empty
No full textWater is Earth\u27s most precious resource as it holds the fate of all living things. Throughout human history, civilizations have depended on a reliable supply of freshwater. From rain-water harvesting and irrigation canals to fracking and groundwater pumping, humans have continually developed ways to control and use water resources. Whether for industry or agriculture, all aspects of human life need water. As a result, societies always faced pressure from various competing interests. Today, however, the demand for water has surpassed sustainability levels overflowing into potentially irreversible paths. Using the New Haven School of Jurisprudence, this paper aims to diagnose the critical social problem and prescribe possible solutions. Part I delineates the global water crisis, and Part II illustrates the conflicting claimants and their different perspectives. Part III surveys past legal decisions considering their predisposition and conditioning factors to examine what really happened. Part IV aims to predict future decisions to see what will happen, and Part V provides appraisals, alternatives, and recommendations for what should happen
The Feel of a Case: Virtue Decision-making as the Correct Approach for Deciding Cases in Equity
No full textSection I of this Article will provide a brief history of Law and Economics, beginning with its origins in the judicial philosophy of legal realism as espoused by Oliver Wendell Holmes. Section II will discuss the American Hospital case, where Judge Posner memorialized the Leubsdorf- Posner Formulation for granting preliminary injunctions. Section III examines the effect of American Hospital on the lower courts in the Seventh Circuit. Section IV will discuss how the Supreme Court has dealt with preliminary injunctions as well as the factors the Court provided district courts to consider. Section V will describe Professor Solum\u27s idea of virtue jurisprudence. Section VI will analyze the American Hospital decision using the factors put forth by the Supreme Court and the virtue jurisprudence detailed by Professor Solum. Finally, Section VII will provide a conclusion, arguing that an application of equitable principles articulated by the Supreme Court, which are applied based on the feel of the case, combined with virtue jurisprudence is the correct solution for courts deciding cases in equity
Lethal Injection or Lethal Litigation: Florida\u27s Amended Lethal Injection Protocol Opens the Door for Cries of Cruel and Unusual Punishment
No full textIn Florida, lethal injection has been the primary method of execution since the 1990s. The Florida Department of Corrections recently amended its protocol by replacing all three drugs previously used. The first administered lethal dose is now etomidate, an anesthetic that has never been used in the United States as a lethal injection drug. This Comment discusses the lack of empirical research available to support the state of Florida\u27s use of etomidate as an appropriate method of rendering a prisoner unconscious prior to administering the second and third injections. First, this Comment will provide a brief background of the history of the death penalty in the United States, its temporary abolition in Furman, and the administration of capital punishment post-Furman. Second, this Comment will discuss Florida\u27s capital sentencing scheme and the procedures for administering lethal injection, along with the amended protocol implemented as of January 4, 2017. Next, this Comment will outline the substantial risks associated with use of etomidate as a lethal injection drug and its opening the door for prisoner claims of cruel and unusual punishment. Lastly, this Comment will propose a solution to the possibility of endless litigation concerning constitutional violations with use of etomidate by calling for the discontinuation of use of etomidate until further medical literature and research is available regarding the substantial risk of harm and pain, as well as discontinued use until further research is conducted regarding the new, specific drugs which have replaced all three injections previously used in Florida, to determine their safety and efficacy when used in combination
Falcon v. State: Should The Florida Supreme Court Have Opened the Door for Sentencing Review of Juveniles Sentenced to Life in Prison for Murder?
No full textThis Comment addresses the implications on victim\u27s families and society regarding the resentencing and future sentencing of juveniles who have been convicted of murder. Specifically, this Comment will focus on the factors judges are required to consider before a life sentence is imposed, while proposing a solution to balance the factors in order to ensure victim\u27s rights are not overlooked. Part II explores the required juvenile sentencing factors mandated by the United States Supreme Court in Miller, and further explores Florida\u27s response as evidenced in Falcon, Atwell v. State, and Landrum v. State. Part II further discusses Florida\u27s previous statutory scheme and the shift from mandatory life sentences to the application of the Miller-required factors prior to life sentences being imposed on juveniles. Part III discusses the issues stemming from federal and Florida judicial decisions, particularly the effect of resentencing hearings and the newly required factors on our society, the court system, but most importantly, the victims\u27 families. Part IV proposes an inclusive solution by suggesting a more equal balance between defendant\u27s and victim\u27s rights to the Miller-required factors, which judges will take into consideration during sentencing. Part V concludes by explaining that although Florida is bound by its federal precedent, the factors considered are not exhaustive, and courts should adopt a more victim-oriented approach when sentencing juveniles who have been convicted of murder
Aquinas\u27s Prohibition of Killing Reconsidered
No full textSt. Thomas Aquinas speaks to the heart of what it means to be human in our relationship with God when he expounds the way of the moral life in his Summa Theologiae.\u27 A classic example of the depth of his understanding is evident in his treatment of acts that knowingly kill. His style of writing is succinct and sometimes his ideas are distributed among several texts, but one can mine the riches of his thought with patient reading and reflection. This Article focuses exclusively on the extreme case where a person is certain to die if nothing is done and the only way to save that person is by one\u27s act while knowing that it must result in the certain killing of another person. Most scholars using some version of the doctrine of double effect interpret Aquinas to permit such an act when it repulses the attack of an aggressor on someone\u27s life. This Article rejects this conclusion as well as its justification in the doctrine of double effect and proposes a rule that more accurately reflects the texts of Aquinas as he distinguishes prohibited acts from permitted acts. Specifically, it argues that his rule is that, when a person (whether oneself or another) is certain to die if nothing is done and the only way to save that person is by one\u27s act (as a private individual and not one acting under public authority) knowing that it must result in the certain killing of some other person (whether or not an aggressor), the act is prohibited unless one retains or removes a vital life support from the person killed2 that belongs to the person saved (whether oneself or another), or unless one ducks, blocks or redirects a deadly force away from the person saved (whether oneself or another who is under one\u27s charge). If the act does not fit within one of the two exceptions, then it is an attack on the vital life support of the person killed and is a prohibited killing. The first Part explains how and why Aquinas constructs this prohibitory rule and its exceptions. The second Part adds further clarity by applying the rule to several controversial modern-day cases
Gender Violence, State Action, and Power and Control in the Northern Triangle
No full textBook: From Extraction to Emancipation: Development Reimagined
With a distinguished and diverse group of contributors, this edited volume uses Guatemala as a case study to examine broad global themes arising from development practices in emerging economies. It offers important lessons to investors and policy makers on strategies to improve distributional justice and respect for the rule of law, including human rights and environmental norms. The book examines global themes such as climate change, extractive industries, labor regimes, and forced migration, all of which have transborder implications and across-border commonalities. Moving beyond identifying problems, the contributors focus on creative solutions to help developing nations and corporations engage in more sustainable business practices.https://scholarship.stu.edu/faculty_book_chapters/1008/thumbnail.jp
Lieux De Memoire in International Law: The Rights of National and Ethnic Minorities Related to Their Memorial
No full textThe term lieux de mimoire or sites of memory, as the historian Pierre Nora formulated it, expresses the problem of the embodiment of memory in certain sites where a sense of historical continuity persists. Contrary to history which is the reconstruction of the past, memory is the perpetual transmission and conservation of collectively remembered values by ethnic minorities, families or groups. It binds a concrete group to which it is specific, thus it is by nature multiple and yet specific; collective, plural, and yet individual. Memory takes root in the concrete, in spaces, gestures, images, and objects , and lieux de memoire are the embodiments of a memorial consciousness. Thus, lieux de memoire could take a series of materialized and intangible forms such as monuments, cemeteries, museums, anniversaries, statutes, natural landscapes, institutions, traditions, books or fine arts, due to their iconic importance for the memory of a group. It is not by accident that especially national and ethnic minorities defend a privileged memory and more generally their identity through lieux de memoire; for religious, national and ethnic minorities, without commemorative vigilance, history would soon sweep them away