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McKinney v. Saviego
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/1011/thumbnail.jp
Civil Asset Forfeiture: Analyzing Florida Procedure Regarding Law Enforcement\u27s Shadiest Procedure*
No full textCivil asset forfeiture has a long and storied history in United States jurisprudence. Civil asset forfeiture has become a hot issue again recently, provoking a media frenzy in outlets ranging from the Washington Post to the HBO show, Last Week Tonight with John Oliver, and culminating with a call by Attorney General, Eric Holder, for reform of the practice nationwide. This Article traces the history of civil forfeiture nationally, examines the Civil Forfeiture Statute in Florida, discusses the impact on civil liberties, and finally, looks to possible ways in which to reform civil asset forfeiture
The UK Insurance Act 2015: A Restatement of Marine Insurance Law
No full textThe doctrine of utmost good faith is a fundamental tenet of the law of marine insurance. In both Britain and the United States (majority view) the law of marine insurance imposes a duty of utmost good faith, or uberrimae fidei. This duty sets a high standard: the to contracts of marine insurance must not only avoid fraud and misrepresentation, but they are required to disclose voluntarily every material circumstance. This principle dates back to the seminal 1766 English case Carter v. Boehm, and has gradually been adopted by a majority of the American courts. However, something unusual happened in February of 2015. On February 6, 2015, the First Circuit decided Catlin (Syndicate 2003) At Lloyd\u27s v. San Juan Towing And Marine Services, Inc., making the solemn announcement: Although this court had not yet held definitively that uberrimae fidei is an established rule of maritime law, we do so now, thus joining the near-unanimous consensus of our sister circuits. \u27 Not even a week later, on February 12, 2015, the Queen gave Royal Assent to the Insurance Act 2015, containing the opposite announcement: Any rule of law permitting a party to a contract of insurance to avoid the contract on the ground that the utmost good faith has not been observed by the other party is abolished. This contrast may look ironical at first sight, but a close analysis and a view from a proper perspective shows that it is not. This article supplies a history of the making of the Insurance Act, presents a summary and review of the Insurance Act, and examines the many innovations therein contained together with an updated comparative view of the American and British legal systems of marine insurance. After a wholesome fresh review of the famous opinion of the Fifth Circuit in Albany Ins. Co. v. Anh Thi Kieu, this article suggests that Anh Thi Kieu was not, after all, so heretical as other circuits, but rather a kind of prophet in homeland for the many affinities between Anh Thi Kieu and the newborn Insurance Act. This article concludes with a review of the possible consequences of the new United Kingdom legislation and of the possible influence on future American case law. The Insurance Act contains, in fact, many other revolutionary provisions, such as on warranties, actions against third parties, variations to insurance contracts, and more
The Affordable Care Act: Does It Improve Health and Does It Live up to Human Rights Standards
No full textLet me begin with an assumption that health is a human right. One can find a right to health in Article 25 of The Universal Declaration of Human Rights, which provides that [e]veryone has the right to a standard of living adequate for ... health... , including ... medical care. \u27 This document is considered a milestone document in the history of human rights because it is the first record whereby nations collectively recognized, in writing, that some rights were so fundamental to human flourishing that they were to be universally protected
Intent Reconceived
No full textThis Essay builds the foundation of a new paradigm in legal intent that\u27 advances justice by producing an accurate fit between the blameworthy states of mind and the formal rules by which we measure culpability and punishment. The Essay begins by challenging the pervasive conflation of the states of mind of purpose and desire, a fundamental conceptual error sponsored by William Prosser, the dean of American tort law. The Essay then reveals the ambiguity inherent in our general notion of purpose by distinguishing between its non-culpable, aspirational aspect and culpable executory purpose that triggers the wrongdoer\u27s act. The concept of executory purpose also overturns the traditional view that the states of mind of purpose and knowledge are independent prongs of legal intent. Instead, this Essay argues that the decision to act, which signifies a defendant\u27s moral and legal culpability and underlies the state of purpose, constitutes a necessary condition of knowing action, making the division of intent into purpose or knowledge a false dichotomy. In turn, the Essay asserts that, in Garratt v. Dailey-the monument to tortious intent entrenched in first-year casebooks for over half a century-the Washington Supreme Court\u27s remand to inquire into Brian Dailey\u27s knowledge after the trial court found no purpose constitutes a logical contradiction. Finally, this Essay reconstrues the mental states of desire and knowledge as aggravating factors, like premeditation, in the grading of criminal offenses and the measurement of punishment. These insights generate new analytical tools in the calculus of culpability. This Essay asserts the reconstruction of intent as executory purpose unfettered by the conflation of purpose and desire, the mistaken use of the aspirational sense of purpose, and the mirage of the knowledge prong ultimately achieves a seamless fit between our mental states and the doctrine of legal intent
From the Graceful Sari to the Scourge of Dowry: Indian Women in the Crucible of Tradition
No full textIndia is not just the exotic, mystifying spiritual icon of a captivating land. Far from that. It is a bustling place of thriving, up-and-coming businesses, but it is also beset with millions of problems, like any other country: poverty, discrimination, corruption, political intrigue, and political radicalism. Atop all these issues, in my mind, sits the lack of equality, discrimination against and oppression of women. This oppression is engrained and is practiced by virtually all: the husband, the father, the in-laws, the kinship, the community, the religion, the culture, the custom, the political class, the government, the law, the private sector. It even cuts across the other great problem of structural inequality, i.e. the caste system, only nominally abolished, but still very much part of Indian reality.Within this vast array of problems that surround life and particularly women, this brief paper focuses on two tribulations, which, arguably, are uniquely Indian. One of them, dowry in the form of demanded cash, jewelry, and other material wealth is manifestly objectionable from a natural and positive law perspective. The other one, the traditional quasi-mandate of wearing the sari, is slightly more ambiguous and can be considered, on the face of it, a mere annoyance, but it is much more abidingly restrictive, because it is the culture firmly regulating women’s attire in order to control the reactions of men. A cross-cultural analysis and evaluation of these two problems will be done primarily through the lens of human rights, determining that borderline of acceptability of culture in universal human rights law. I argue that government has a duty to respect, to protect and ensure human rights of women, including a positive obligation to build the human and material infrastructure that would put into practice a policy and law that is often present only on paper
Some Thoughts on the Universal Declaration of Human Rights and the Generations of Human Rights
No full textIn recent legal literature on human rights, a commonly accepted approach has been to classify such rights in terms of generations, divided into three tiers. Scholars often divide and ascribe human rights to their corresponding generation. In this practice, first generation rights comprise civil and political rights and freedoms, second generation rights include economic, social, and cultural rights, and third generation rights implicate such diffused rights as more recently identified in international human rights law, such as the right to peace, development, a safe and healthy environment, sufficient and safe food for all, or the use of natural resources. This classification is formally based in existing international legal instruments adopted within the framework of the United Nations since the Universal Declaration of Human Rights of 10 December 1948, which contained the first comprehensive catalogue of fundamental human rights without any classification of them. On the one hand, the first and second generation rights are essentially dealt with, respectively, in the two International Covenants of December 16, 1966. Whereas, on the other hand, the third generation rights are reflected in different specific instruments, mainly General Assembly declarations, as their emergence in humanitarian law is more recent and uncertainties in their identification have prevented the adoption of a comprehensive legal instrument dealing with their protection
America\u27s Mental Health System: Closing the Revolving Door between Hospitals, Correctional Facilities & the Streets
No full textThis comment focuses on a two-pronged issue with mental healthcare in the United States. First, a balance must be found between involuntary treatment laws and the constitutional right to refuse treatment. With each state having its own mental health laws, there is no national, uniform approach for addressing mental health issues, and it is unclear when it is necessary to commit a mentally ill patient. Second, once it has been determined that a patient qualifies for involuntary treatment, it is crucial that facilities can accommodate that patient. This latter requirement has become a difficult task because mental health facilities throughout the United States have insufficient funding. It is imperative that we reach a solution that not only helps this at-risk population, but protects society as a whole. Part II provides general background information on the history of deinstitutionalization, and how the right to refuse treatment has developed over time in the United States Supreme Court. Part III discusses the Mental Health Parity and Addiction Equity Act ( MHPAEA ), the PPACA, and the type of coverage provided for mental health services. Part IV focuses on three different states that have been ranked by Mental Health America ( MHA ) from highest to lowest, based on the prevalence of mental illness in their state and the rate of access to care. Finally, Part V suggests implementing a federal mental health system that operates successfully by combining state mental health laws and programs
Please Turn Your Lights off, the Turtles Are Nesting: Ensuring That Federal, State, and Local Laws Help Guide Endangered Marine Turtle Hatchlings in Florida to the Right Source of Light
No full textPart I of this paper provides background information on sea turtle behavioral patterns in nesting and hatching, while also highlighting the problems of disorientation and nesting deterrence. Part II examines federal and state laws that authorize and delegate sea turtle oversight protections, administer legal and practical protection, and attempt to enforce the laws to prevent sea turtle disturbances or deaths. Part III discusses local ordinance regulations on artificial lighting and comments on the Model Lighting Ordinance in Florida. Part IV analyzes sea turtle law coordination and conservation at the federal, state law, and local ordinance level, while commenting on a local county\u27s efforts and missteps. Finally, Part V proposes practical initiatives and assistance from citizens to facilitate the state of Florida and its local governments in their effort to allow sea turtles the full opportunity to live safely through the low hatchling survival rate