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Private Habeas
No full textHalf a century ago, Abraham Maslow demonstrated that conditioning a person\u27s physical safety on their participation in some higher-order social project is sheer madness. Yet this is exactly what federal immigration law does to undocumented victims of human trafficking. To receive a visa, victims must first convince Donald Trump\u27s immigration officials-who have a strong interest in deporting them-that they are, in fact, victims. They also must cooperate fully in the prosecution of their trafficker, a process over which they have no real control. This is not a new complaint. Advocates have been frustrated by this myopia for a long time. It\u27s time we do something about this-not as lobbyists, but as lawyers. The federal habeas corpus statute requires courts to order the release of people detained in violation of the Constitution or laws of the United States. These cases are usually brought against the government. But the Thirteenth Amendment and its enforcing statutes are not so limited, and neither the State nor the federal courts have ever confined habeas law to state actors. Abolitionist lawyers used the Great Writ to wrest freed slaves from the clutches of their masters when the political branches lacked the will to help. We can follow their example. Private Habeas proceedings allow advocates to bypass a hostile executive branch and-most importantly-order the legal process according to the victim\u27s hierarchy of needs
Crime Shouldn\u27t Pay: How California Should Expand and Restructure its Human Trafficking Asset Forfeiture Laws
No full textSection I of this article will provide updated statistical data on human trafficking in California, demonstrating increased consciousness, heightened awareness and the ongoing search for effective tools. Sections II and III will highlight the important psychological and practical economic impact asset forfeiture laws have on crime. These sections will also provide a comprehensive review how forfeiture is currently implemented in the fight against human trafficking. Sections IV and V will argue why human trafficking crimes must be subjected to California\u27s civil asset forfeiture laws: how civil forfeiture reduces both the supply-side and demand-side of trafficked victims. It will also provide a concrete analytical framework upon which legislative changes could be made, extending the current asset forfeiture statute to fully encompass crimes of human trafficking
The Rank-Order Method for Appellate Subset Selection
No full textAppellate courts in many countries will often use a subset of the entire appellate body to decide cases. The United States courts of appeals, the European Court of Justice, and the highest courts in Canada, Israel, South Africa, New Zealand, and the United Kingdom all use subsets. Utilizing such subsets has the advantage of increasing judicial efficiency, but creates the possibility that there will be an attempt to manipulate the composition of the panel for strategic purposes. In general, there have been two methods that appellate courts have used to choose their subsets: direct selection and random assignment. In direct selection, the chief judge or a designated court administrator (hereinafter, the Selector ) simply selects the members and size of the panel for that particular case. In random assignment, the size of the panel is preset and the composition of the panel is randomly assigned from the full set of judges. Both of these subset selection methods likewise involve a trade-off. Direct selection allows the Selector to choose panels that reflect the views of the entire set of judges. At the same time, direct selection also permits the Selector to game the outcome in particular cases. Random assignment prevents such purposeful gaming, but allows for unrepresentative outlier panels to form simply by the luck of the draw. This Essay introduces a new method for selecting subsets that combines the best elements of both the direct selection method and random assignment, while avoiding their pitfalls. This new method-which I call the rank-order method creates subsets that are judicially efficient and representative of the appellate body as a whole. The rank-order method is specifically designed for use in politically charged cases where the reactions of specific judges to the particular case can be , \u27predicted with a fair degree of accuracy. Importantly, the rank-order method also mitigates against possible judicial gaming. This Essay proceeds as follows: Part I discusses the fatal flaws of random assignment and direct selection: outlier panels and judicial gaming, respectively. Part II introduces the rank-order method and explains how this method is superior to either random assignment or direct selection. Part III provides detailed examples of how the rank-order method works in practice. Part IV concludes
Dostoevsky as Juvenile Justice Advocate and Progenitor of Therapeutic Jurisprudence
No full textIn this Article, I explore this fixation with childhood suffering and suggest that Dostoevsky implicitly predicted the core tenets of a relatively new legal movement, called therapeutic jurisprudence ( TJ ), and I broach the question of why this matters. In an effort to provide an answer, I identify Dostoevsky as an early ombudsman for therapeutic juvenile justice and link him to the voiceless polyphonic voices in The Brothers Karamazov and to what I denominate the poly-personae of A Writer\u27s Diary
Florida\u27s Stand Your Grand Law: How to Get Away with Murder
No full textOn the afternoon of February 26, 2012, George Zimmerman (Zimmerman) drove through his neighborhood when he spotted a suspicious black male and decided to inform the authorities. Seventeen-year-old Trayvon Martin (Martin) was walking home after purchasing a bag of Skittles at a nearby 7-Eleven. Instructed by a police dispatcher, Zimmerman was to stay in his vehicle and avoid Martin. Zimmerman ignored the dispatcher\u27s instructions and decided to approach Martin. Zimmerman consequently entered into an altercation with Martin, who was unarmed. Moments later, Zimmerman shot Martin, and claimed self-defense. A claim of self-defense under a Stand Your Ground theory enables an individual to claim immunity from prosecution and avoid trial completely. Stand Your Ground or Shoot First laws were enacted to guard citizens when confronted with a situation where they fear their lives are in danger. Under Stand Your Ground laws, an individual may use deadly force to defend him or herself without first analyzing whether or not he or she could avoid the situation altogether. These laws eliminate a duty to retreat, which requires a person to walk away from a dangerous situation before relying on self-defense. The result is an easy manipulation of legislative intent in its creation of Stand Your Ground laws and the concept of self-defense. Stand Your Ground created a phenomenon amongst individuals, dividing those who are trigger happy and those who favor gun control legislation. The critical issue lies within the judicial interpretation of the law on a case-by-case basis. Was the law created to justify unauthorized killings or was it made to assist those who are in perilous settings
The Understanding of “Neither slavery nor involuntary servitude shall exist” Before the Thirteenth Amendment
No full textBy providing that [n]either slavery nor involuntary servitude shall exist, the authors of the Thirteenth Amendment adopted a prohibitory formula, originating in the Northwest Ordinance of 1787 that was subsequently incorporated into the organic laws of many territories and states, and by 1865, had been for decades subject to extensive interpretation and commentary. To assess the original understanding of the Thirteenth Amendment, then, it is necessary to examine the pre-Amendment understanding of this prohibitory language. In this article, I review this evidence and draw the following conclusions: (1) the prohibition was deemed derivative of the natural-rights principles of the Declaration of Independence; (2) the prohibited slavery and involuntary servitude represented two distinct, yet partially-overlapping, concepts; (3) the prohibited slavery and involuntary servitude did not encompass traditional servitudes like those between parent and child; (4) the stipulated non-existence of slavery and involuntary servitude concerned chiefly their legal existence and perhaps also their actual existence; and (5) this stipulated non-existence did not, ipso facto, prohibit racial discrimination or any other badges of servitude
Prisoners of the Zip Code: How Single Zip Code Rate-making Hurts the Public Interest
No full textThis comment argues that using socioeconomic data to calculate auto insurance premiums within the boundaries of a single ZIP Code disproportionally increase premiums on low-income households, leading to higher rates of uninsured drivers in these communities. Furthermore, this comment discusses how this rate scheme provides a possible avenue to illegally discriminate based on race, as a direct result of historical racial segregation and recent advances in big data. Part II.A of this comment discusses the recent amendment to the insurance laws of Florida that now allows the use of a single ZIP Code to calculate auto insurance rates. Part II.B provides a short history of the evolving methods of racial segregation in Florida. This section also asserts that the legislature failed to take into account the geographical correlation between ZIP Code boundary lines and the perpetuating and constricted racial composition of neighborhoods in Florida. Part II.C discusses the latest advances and capabilities of big data. It also presents the ever-advancing capacity of big data to collect and forecast personal behavior. Part III.A discusses the experience rating system and the areas of moral hazard and adverse selection. Part III.B discusses the impact of high premiums on the cost of vehicle ownership and its impact on socioeconomic mobility. Part III.C presents a comparative analysis to understand the actual effectiveness of progressive criminal punishment for uninsured drivers. Finally, Part IV argues that Florida should follow the lead of California and prohibit the use of single ZIP Codes and socioeconomic factors in rate calculations. Additionally, it proposes the establishment of a reimbursement system for consumer intervenors in rate-making decisions as possible solutions that can reduce premiums, and lead to lower rates of uninsured drivers and more vehicle ownership in low income households
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 12 (2017)
Civility and Professionalism in the Law: The Road to Justice Symposium Dedication
No full textThe Greenberg Family is delighted and honored that this edition of the St. Thomas Law Review is being published in honor of our father, Murray Greenberg. Although we thought of him as just our Dad, we know that he was beloved and deeply appreciated by generations of lawyers, law students, and others throughout South Florida for his contributions to our community and the Bar. This volume, with its emphasis on professionalism and civility in the practice of law, speaks to many of the issues that he cared about most and that he exemplified as a lawyer and a person