STU Scholarly Works (St. Thomas University)
Not a member yet
1001 research outputs found
Sort by
The Importance and Challenges of Values-Based Legal Orders
No full textMy first words must be those of gratitude. I had the honor and privilege to participate from its beginning in the realization of the prestigious LL.M. program in Intercultural Human Rights established in 2001 by my highly esteemed friend and colleague Siegfried Wiessner, very soon effectively supported by Roza Pati. I exactly remember her as student, of course the best, of the first year, and Siegfried with his reliable glance for excellence immediately chose her for the performance of higher functions. To both of them I am deeply indebted for giving me the opportunity to spend so many months here at St. Thomas for teaching. If my teaching was enriching, it was so certainly for me. Further, I owe much gratitude to the whole Law Faculty, headed by Dean Garcia. Actually I had the pleasure to meet some of you serving as Deans during my stays in Miami, and I enjoyed the discussions with all of you a lot. Finally and in particular, I had the great honor to meet the President of this University, Monsignor Casale, not only at a very memorable conference in Bogotd, Colombia, but also on several occasions here at St. Thomas, and I am very honored that he is with us today. I thank you all for the great hospitality and friendliness you have always extended to me, not least by organizing today\u27s event. If I now terminate my annual engagement, it is not because I would have to complain about anything. On the contrary, I feel more familiar with this faculty than ever. But from the book of the preacher Solomon we all know that everything has its time. However, I could not leave this great School of Law without bidding farewell in an academic way, i.e., by a lecture. I have entitled my paper The Importance and Challenges of Values-Based Legal Orders, containing some thoughts which have occupied me for quite a long time
Politics of SB 1070
No full textBook: The Oxford Encyclopedia of Latinos & Latinas in Contemporary Politics, Law and Social Movements
The Oxford Encyclopedia of Latinos and Latinas in Contemporary Politics, Law, and Social Movements (OEPoL) provides a comprehensive source of information on the diverse historical and contemporary experiences of Latinos and Latinas in the United States. Incorporating key material from the acclaimed four-volume Oxford Encyclopedia of Latinos and Latinas in the United States (OUP, 2005), this ground-breaking publication addresses the significant ways in which the Latino and Latina populations have shaped the political, legal, and social institutions of the United States, with new and updated scholarship on political movements and organizations, important legal cases, minority-rights laws, and immigration legislation. The two-volume OEPoL contains over 450 topical entries written by key academics, intellectuals, and scholars. The articles range from expansive survey essays, to biographies that document the lives of important individuals in Latino and Latina history, to interdisciplinary entries focused on essential themes and issues. Supplemented by over 50 images and a bibliography of suggested readings for each entry, OEPoL ensures that this timely, increasingly prominent subject receives the reference coverage it deserves.https://scholarship.stu.edu/faculty_book_chapters/1010/thumbnail.jp
Coal and Gold, Hard and Cold: Using Trade Agreements to Resolve Human Rights Violations in the Caribbean Colombia Mineral Extraction Industry
No full textThe obvious recipients of the bounty made possible by modem regional trade agreements (RTAs) are the transnational corporations (TNCs) whose markets these agreements expand and whose investments they protect. It is equally clear, however, that TNCs have escaped direct responsibility for compliance with the obligations undertaken in these agreements, leaving the actionforcing commitments to the signatory governments. Such an escape from quasi-signatory status is inconsistent with emerging international law. In the fields of international criminal and human rights law, it has long been recognized.., that international law imposes duties and liabilities upon individuals as well as States. Moreover, in most RTAs corporations obtain rights particular to them, such as the right to challenge government actions before international arbitration tribunals for substantial interference with their investments, and, in the North American Free Trade Agreement (NAFTA), the right to challenge national signatories before international dispute settlement panels for breach of national dumping and subsidy laws. From such direct rights may logically follow direct obligations. International scholars adjudge that no rule of international law prevents a treaty\u27s provisions from being applied directly to corporations, without need of implementation by domestic law. Despite this longstanding inclusion of TNCs as rights holders in trade treaties, no RTA of which the author is aware holds TNCs liable for violation of the strong human rights protections in modem RTAs for workers, indigenous communities, and the environment. As a result, these central rights fall outside the usual due diligence that a TNC will perform in evaluating the costs and benefits of undertaking a project. Moreover, the proven dispute settlement systems in RTAs cannot be called into action to remediate or punish actions by TNCs that bank the benefits but avoid the costs of these agreements. The Colombia-United States Trade Promotion Agreement (CTPA or Agreement) is an RTA that boasts such robust human rights protections. In this regard, we applaud the myriad substantial steps that Colombia\u27s new Ministry of Labor has taken to implement its strengthened labor laws and to satisfy the CTPA\u27s high standards for worker rights. New inspectors, investigators, and prosecutors have been hired and trained. Convictions have been obtained against perpetrators of union murders dating back 10 years and backlogs of crimes against unionists have been cleared.3 Colombia\u27s agencies that strive for environmental protection and inclusion of indigenous communities in the economic growth of the country have raced forward with equally forceful actions. Nonetheless, the enormity of the task and the scarcity of resources practically guarantee that Colombia\u27s efforts to implement the Agreement\u27s protections of worker and indigenous rights and the environment will be insufficiently robust to ensure compliance by TNCs. While the TNCs are bound by the laws of the host government, enforcement of these laws is prohibitively expensive for emerging market governments with limited resources. Colombia has taken substantial action to strengthen its labor and other laws to satisfy the CTPA\u27s high standards for protecting workers, indigenous communities, and the environment. However, we believe that only by creating a system to bind TNCs directly to the RTA\u27s human rights obligations, and using the CTPA\u27s many astute processes to assist in enforcement of this system, will we realize the Agreement\u27s intent to protect trade-related human rights. We have identified three options to secure this result: amendment of the RTA to make its human rights provisions directly applicable to TNCs; application to TNCs in Colombia\u27s mining industry of the U.N. Guiding Principles for Business and Human Rights; and Colombia\u27s issuance of a special annex to its mineral extraction licenses. Our analysis indicates that the first option is politically impractical, especially so soon after entry into force of the Agreement, and that the second option relies injudiciously on the TNC\u27s sense of corporate social responsibility. We conclude that compliance with the CTPA\u27s human rights protections will improve substantially only if the Ministry of Mines requires that licenses for TNC projects in Caribbean Colombia\u27s mineral extraction industry include a Human Rights Annex that brings the TNC directly into preventive and remedial enforcement in a cooperative effort with Colombian authorities. The TNC\u27s contribution would include establishment and funding of non-judicial grievance, mediation, and binding arbitration mechanisms to complement the additional inspectors and the strengthened criminal laws that are key elements of the Colombian government\u27s response to the CTPA\u27s protections
Mixed Transactions for Goods and Services: The Need for Consistency in Choosing the Governing Law
No full textImagine you are about to lose your home insurance after your provider contacted you stating that all homes with a pool are required to have a fence around the property. You quickly find a company that sells and installs fences and enter into a contract with them. You pay a fortune for the fence, but your insurance is saved. Shortly thereafter, the fence proves to be faulty, and the company refuses to fix the problem. Now, you sue under certain warranties that are provided by the Uniform Commercial Code ( U.C.C. ), but the court finds that the U.C.C. does not apply to your dispute and that the warranty you wish to sue under is not available under common law. Although you argued that the U.C.C. applies to your case based on prior cases providing that the sale and installation of a fence falls under the U.C.C. as a sale of goods, the court disagrees and finds that the contract seems to be mainly for services, falling under common law. Should there be a better standard for the court to apply in sale of goods and services transactions or is it fair that you are barred from recovery when others in your situation have been able to recover based on similar facts? This comment begins by discussing the background of the U.C.C. and the predominant purpose doctrine in Part II. Part III of this comment examines the various tests courts have used to determine the governing law of a transaction. Further, Part III.a considers the method of separating the transaction Part III.b details the application of the U.C.C. to any mixed contract. Part III.c provides a discussion of the gravamen standard, which some courts use as their method of choice. Lastly, Part IV discusses the need for a uniform standard in these situations, provides a view of a recent case where the court developed an efficient set of factors to be applied, and argues how to make those factors even more effective in order to promote widespread adherence to one standard, which will create consistent and just outcomes in cases of tricky mixed transactions
Better the Mob and the Ku-Klux: A History of the Law of Search and Seizure in Florida
No full textAs late as 1930, and on several occasions prior to that date, Harvard Law Professor Felix Frankfurter could offer, as an example of something that the Supreme Court would almost never be called upon to decide, whether the [Fourth Amendment] protection against \u27unreasonable searches and seizures\u27 is violated. In 1939 Professor Frankfurter was appointed to the High Court, where he would serve for 23 years; and where, as Justice Frankfurter, he would participate in a great many notable opinions having to do with whether the Fourth Amendment protection against unreasonable searches and seizures had been violated. That Professor Frankfurter made a bad guess doesn\u27t make him a bad guesser. From the adoption of the Fourth Amendment in 1791 until the decision in Weeks v. United States in 1914, the Supreme Court had almost nothing to say about the meaning of the Fourth Amendment\u27s protection against unreasonable searches and seizures, for the very good reason that nobody asked. A constitutional provision that engendered jurisprudence about once every 123 years was unlikely to engender much jurisprudence. Fremont Weeks was the man who got around to asking the Supreme Court what the Fourth Amendment meant. While Weeks was being arrested at the train station in Kansas City, Missouri, police officers entered his home without a warrant; searched; and seized various papers and other evidentiary artifacts. After turning the fruits of this search over to the U.S. marshal, the police and the marshal returned to Weeks\u27s home and searched again, seizing still more documents. None of this searching and seizing was done pursuant to warrant. Charged with various federal crimes relating to the conduct of a lottery, Weeks moved for the return of his unlawfully-seized property. The motion was denied upon the representation of the prosecution that the property in question was evidence, and would be employed as such at trial. Weeks renewed his objection at the time the demised papers were offered in evidence against him. His objection was overruled. It was undoubtedly the case that, at common law, evidence was not subject to suppression because it had been unlawfully obtained...But Weeks did not call upon the Court to construe the common law. It called upon the Court to construe the Fourth Amendment
Doin\u27 Time for an Unproven Crime: The Problem of Unpreserved Evidence Sufficiency Issues in Criminal Appeals
No full textSections I and II of the article lay out the general principles of the preservation rule and its fundamental-error exception. Section III discusses the Florida cases that have wrestled with the problem of unpreserved sufficiency issues in criminal cases. The problem in the cases-seen in F.B. and in the pre-F.B. district court cases-is that Florida courts do not say that all valid-but-unpreserved sufficiency issues should be remedied as fundamental error. This means there will be some cases where the evidence in the record fails to establish all the elements of the crime of conviction but the court will affirm because the issue was not preserved. This raises two questions: How we distinguish these two classes of cases; and why do we draw this distinction? Section IV addresses these two unanswered questions in F.B. First, assuming the a-crime-was-committed test is the proper test for fundamental error, how do we apply this test in practice? Does a-crime include, as Monroe said, any-crime-whatsoever? If not, what does it include? As to why we draw the distinction, the only possibly viable reason given in F.B. is the curethe- deficiency logic. But, as just noted, this is not a valid reason as long as Rule 3.380(c) allows sufficiency issues to be initially raised post-verdict. No Florida court has addressed this latter argument. Further, the a-crime-was-committed test is not related to the cure-thedeficiency logic that is said to justify it. Whether the evidence proved that a[nother]-crime-was-committed tells us nothing about whether, as to the crime of conviction, the State could have cured-the-deficiency if the unpreserved sufficiency issue had been raised during trial. Section IV also summarizes the Florida cases that have recognized that some unpreserved issues in criminal appeals-including sufficiency issuescan be addressed as IAOC claims on direct appeal. This body of case law raises a third unanswered question: If trial counsel\u27s failure to raise a valid sufficiency issue under Rule 3.380(c) constitutes clear IAOC that can be remedied on direct appeal, why do we even bother with this fundamental error analysis? Section V briefly summarizes the case law from other jurisdictions. Even without a provision like Rule 3.380(c), the overwhelming majority of other jurisdictions allow unpreserved sufficiency issues to be raised on direct appeal. The article concludes that there is no reason to use the F.B. fundamental error analysis. A valid-but-unpreserved sufficiency issue will always be fundamental error because the failure to preserve the issue violated the defendant\u27s fundamental right to effective assistance of counsel. The Florida Supreme Court should recede from F.B. and allow all unpreserved sufficiency issues in criminal cases to be addressed on direct appeal
Water: An Essential Element for Life
No full textThis essay is a book review of Water: An Essential Element for Life by The Pontifical Council for Justice and Peace
A Human Right to Health: Is There One and, If So, What Does It Mean
No full textThe human right to health, maybe more than any other right, uncovers disparities in respect for the human dignity of persons, based on race or ethnicity, socioeconomic status, geographic location, gender or sexual orientation, age, mental health, disability, and other characteristics. This article discusses the place of the human right to health in international law: whether a human right to health exists at all and, if so, what that means. It will illustrate that while the right to health is not universally legally enforceable the realization of the right to health is indeed progressing. The 1948 Universal Declaration of Human Rights is not as such legally enforceable, yet it has led to at least universal awareness of human rights. The number of states that are parties to legally enforceable human rights treaties and that have enacted domestic human rights laws continues to grow, as does the network of values-based nongovernmental organizations and movements. This article first provides an explanation of the meaning of human rights and the right to health. It examines to what extent both are enforceable under international law and achievable through non-legal sanctions or rewards. The second part of the article addresses recent world events that may not intuitively evoke the right to health, but in fact constitute violations of the most vulnerable people\u27s right to health by the most powerful, and illustrate the breadth of issues that implicate the human right to health
Hannibal at the Gate: Border Kids, Drugs, and Guns - And the Mexican Cartel War Goes On
No full textBecause Mexico and the United States not only share a common border, but also co-exist as international trade partners, the United States should be greatly concerned about the crisis in Mexico. Indeed, with the rising number of casualties in Mexico\u27s drug war, U.S. politicians and officials, journalists, writers, and pundits have begun to debate whether the crisis in Mexico threatens U.S. national security, and, if so, the extent to which U.S. national security is at risk. This article seeks to establish that the crisis in Mexico is a current threat to the national security of the United States for several reasons: the crisis could (1) adversely affect control over the U.S.-Mexico border; (2) cause a humanitarian emergency, including the historic rush of unaccompanied children; (3) lead to the collapse of Mexico\u27s economy, negatively impacting the economy of the United States; and (4) cause the destabilization of other Central American nations. However, the current threat is still reversible and there are still measures that can be taken to prevent further damage to the United States and Mexico. This paper recommends that the United States should take specific steps to prevent the crisis from breaching our own security. To better analyze Mexico\u27s situation and its impact on the United States, it is important to first know how Mexico\u27s drug war developed and evolved into a crisis. The first two parts of this paper provide background on the Mexican drug cartels and Mexico\u27s drug war. Part I is an overview of the evolution of the Mexican cartels, from their birth as criminal gangs, to their partnership with the Colombian drug cartels, to their present status as formidable adversaries of the Mexican state. In addition, Part I describes the historical relationship between the Mexican cartels and Mexico\u27s government. Part I further explains how the United States has, in part, facilitated the rise of the cartels through the consumption of drugs and selling of firearms. Part II gives an account of Mexico\u27s drug war, beginning with the commencement of President Calderon\u27s offensive against the cartels and its progression to a national security crisis. Part III argues that the crisis in Mexico is a potential threat to the national security of the United States. Part IV recommends several ways to alleviate this threat to U.S. national security. Although the recommendations are not exhaustive, they are intended to contribute to the debate and to generate further discussions about how to approach the security problem
Catholic Health Care and The Affordable Care Act: A Matter of Social Justice
No full textWith over a billion members, the Catholic Church is the largest Christian denomination in the world. It also manages twenty six percent of all health facilities worldwide.\u27 In the U.S., where one in six patients is treated at a Catholic hospital, the Catholic health care network is the largest group of nonprofit health care providers in the country. With more than 600 hospitals and 1,400 long-term care and other health related facilities, Catholic health care has been a powerful presence in the U.S. for a long time. The Sisters of Charity were the first religious community to staff a hospital when, in 1823, they started working at the Baltimore Infirmary. In 1832, the Daughters of Charity began administering Charity Hospital in New Orleans one of the nation\u27s first hospitals when it opened in 1736. The nuns continued to manage the facility for over 150 years. Over the years, Catholic health care facilities have continued not only to provide excellent medical care but also to actively participate in pastoral care, medical ethics, and public policy. Catholic health care matters. Why? Because the Catholic Church bears witness to the human condition in an unparalleled way. In this article, I will show how Catholic social teaching, with its interpretive framework of meaning and unique understanding of the world, brings its vision of social justice to the realm of health care. I will then use Catholic social justice teaching to critique the Affordable Care Act