STU Scholarly Works (St. Thomas University)
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Human Flourishing: The End of Law
No full textThis rich volume is an homage to the significant impact Professor Siegfried Wiessner has had on scholarship and practice in many areas of international and domestic law. Reflecting the depth and breadth of his writings, it is a collection of thought-provoking, original essays, exploring topics as diverse as theory about law, human rights, the rights of indigenous peoples, the rule of law, constitutional law, the rights of migrants, international investment law and arbitration, space law, the use of force, and many more, all integrated by the problem- and policy-oriented framework of what has come to be known as the New Haven School. Its title “Human Flourishing: The End of Law” reflects the conviction that the purpose of law ought to be to allow humans to achieve their full potential - to thrive and develop, both materially and spiritually, under the law. The volume contributes to a vision of the law as a public order in which the common interest is clarified and implemented peacefully, and offers a source of inspiration for scholars and practitioners working towards such an order of human dignity.https://scholarship.stu.edu/faculty_books/1001/thumbnail.jp
Lack of Access to the Law: Saving Black Americans a Seat at the Legal Table Symposium Transcript
No full textTranscript: Opening Remarks of Lack of Access to the Law: Saving Black Americans a Seat at the Legal Table Symposium by Benjamin L. Crump, Esq
Privately Policing Dark Patterns
No full textLawmakers around the country are crafting new laws to target “dark patterns”—user interface designs that trick or coerce users into enabling cell phone location tracking, sharing browsing data, initiating automatic billing, or making whatever other choices their designers prefer. Dark patterns pose a serious problem. In their most aggressive forms, they interfere with human autonomy, undermine customers’ evaluation and selection of products, and distort online markets for goods and services. Yet crafting legislation is a major challenge: Persuasion and deception are difficult to distinguish, and shifting tech trends present an ever-moving target. To address these challenges, this Article proposes leveraging state private law to define and track dark patterns as they evolve. Judge-crafted decisional law can respond quickly to new techniques, flexibly define the boundary between permissible and impermissible designs, and bolster state and federal regulatory enforcement efforts by quickly identifying those designs that most undermine user autonomy
U.S. Securities Law as a Barrier to Entry for Foreign Funds
No full textVery few foreign mutual funds operate in the U.S. public market, largely because of Section 7(d) of the Investment Company Act of 1940. Effectively, a foreign fund is required to restructure itself as an American investment company to comply with the 1940 Act. The need for globalization and global competition point to why it is necessary to include foreign mutual funds in the U.S. stock market. This article traces the history of attempts to overcome the hurdles posed by the 1940 Act and sheds light on why they have fallen short. It proposes several amendments to Section 7(d) that will remedy these problems. This article contends that warnings against changing this law have overlooked critical factors that would not only protect Americans but bring the United States into sync with global ways of doing business. It concludes by recommending a roadmap for Congress and regulators to adopt to lighten the burden of foreign funds under the 1940 Act whilst maintaining investor protection
Neither Genteel Hoax Nor Slot Machine: Constitutional Interpretation in Policy-Oriented Perspective
No full textBook: Human Flourishing: The End of Law
Chapter Description:
In the United States, most scholarship on constitutional interpretation battles under the clashing banners of Originalism and Living Constitutionalism. The former has ostensibly won the battle, though not yet the war, over interpretation. How either theory impacts human flourishing or other values served by law is often lost in the crossfire. This essay explores the relationship between Originalism and Policy-Oriented Jurisprudence, a human flourishing-centered school of legal thought founded by Myres McDougal and Harold Lasswell. It concludes that they are meaningfully compatible. The article surveys Originalism’s development, highlighting its recent distinction between interpretation and construction, which has undone some historical differences with competing theories. It also surveys Policy-Oriented Jurisprudence’s theory of constitutional interpretation. Acknowledging critical similarities between it and Originalism, the article suggests that the latter could benefit from the former by integrating constitutional construction with some principled, empirical enforcement of the textually embedded concepts of human flourishing and dignity. It also suggests that Originalism pay more attention to legal hermeneutics in international law. A result that could bear the name of “Originalism with a Human Face.”https://scholarship.stu.edu/faculty_book_chapters/1038/thumbnail.jp
The Wolf in Sheep\u27s Clothing: How Historical and Blight Designations in The Absence of Constitutional Safeguards Can Render Property Rights Illusory
No full textThis article summarily analyzes those more subtle forms of property rights infringement, including historical designations and blight designations, and it critiques laws in place that purport to grant local government the authority to assert such designations. This article also provides a summary of the causes of action owners aggrieved by unjust designations could bring in response, and critiques the flaws in those elective safeguards, which are prevalent even in property rights friendly jurisdictions such as Florida. It then proposes high-level solutions to enact legislation to limit fee exposure for property owners who bring inverse condemnation actions and Bert J. Harris claims, and to impose new procedural requirements calling for appraisal reports and payment of full compensation for properties burdened by certain governmental designations
Resolving Establishment Clause Issues Is No Longer Easy-Peasy, Lemon-Squeezy
No full textThe notion of separating Church and State is one that is deeply rooted in American history. Although simple on its face, as the American population grows more diverse, the idea of separation has become a convoluted concept difficult to apply. In an attempt to create a “one-size-fits-all” solution to issues regarding government intruding on the individual’s religious freedoms, the Supreme Court developed a tripartite test to determine whether a statute violated the Establishment Clause. In Lemon v. Kurtzman, the Court combined several tests originating in prior case law to develop the singular, infamous Lemon test. However, in June 2022 with a 6–3 decision in Kennedy v. Bremerton School District, the Court officially abolished the Lemon test and replaced it with a familiar, albeit vague, “history and tradition” test. The Court concluded that an approach emphasizing a “reference to historical practice and understandings” would be more appropriate to determine whether a law violates the Establishment Clause. Although for decades adversaries criticized the Lemon test for being highly subjective and entirely unpredictable, at least it had structure. The new “history and tradition” test now directs judges in lower courts to decide constitutional issues about religion by looking to historical practices and understandings, without further guidance. The unfortunate result of the new test is that judges will cherry-pick moments in history that support their predetermined positions while ignoring the rest of the evidence. As of late, the Supreme Court has increased its reliance on tradition as its guide in decision-making, emphasizing that the only rights that deserve protection are those with a history of judicial safeguards. However, “[w]hat has been done in the past cannot answer normatively what the law should be in the future.” Because the Constitution is meant to protect core values, basic liberties, and equality, for ages to come, the shifting focus on historical practices prevents the Constitution from growing and inhibits essential constitutional evolution. As such, this Comment proposes a new standard for evaluating Establishment Clause issues which combines the Lemon and the “history and tradition” tests to create a multifactorial subjective-objective test. Part II will study the history of the Establishment Clause, the reasons for its enactment, and its application to “moment of silence” laws. Part III will apply the “history and tradition” test to Florida’s recent “moment of silence” statute § 1003.45. Finally, Part IV will introduce the new subjective-objective test and demonstrate why it is a preferred method for effectively resolving Establishment Clause issues
Police Brutality: The Mechanics of Unaccountability, the Emptiness of Proposed Reforms, and a Paradox of Policing Theory
No full textWe appear destined to be periodically sickened by videos of the life being beaten, stomped, and choked out of defenseless victims detained by police in poor, minority communities no matter how many people— sincerely or as flak to cover up their indifference —clamor for unity and change. Given our Pollyannaish view that the mission of police is based on the social consensus theory that they exist to serve and protect all communities, we cannot effectively fashion change that will significantly curtail the brutality. This Essay will reveal the hidden practices that police in our marginalized communities have improvised to veil the brutality not caught on video and the psychodynamics of policing that, in addition to racial bias, foster gratuitous aggression. The Essay argues that, consistent with police brutality’s actual underpinning in conflict theory, the most popularly espoused solutions are token palliatives. And finally, it posits that, as a form of community control, conflict theory entails a paradox
Fish Kills\u27 Hidden Link How Animal Feeding Operations Hurt Florida\u27s Coastal Businesses
No full textThis paper proposes that agricultural water pollution should be further limited. As water pollution laws have thus far failed to adequately guard against nutrient pollution, despite abundantly available regenerative agricultural models, this three-part solution aims to empower citizens and the business industry to hold animal feeding operations accountable. To that end, this paper proposes: (1) expanding Florida’s Red Ride Task Force; (2) educating citizens via a media campaign; and (3) mandating feeding operations participate in Florida’s now voluntary Environmental Stewardship Certification Program. Part II of this paper describes the scientific process whereby discharge from animal feeding operations causes Florida’s fish kills. It also explains the immense economic impact that fish kills have on Florida’s coastal economies. Next, Part III analyzes the legal mechanisms that regulate water pollution at the federal and state levels. It further analyzes the effectiveness of those controls on curbing the negative impacts from agricultural nutrient pollution. Finally, Part III details a three-part solution to address the lack of nutrient pollution regulation by prioritizing community awareness of the links between animal feeding operations, fish kills, and coastal businesses that are stymied by polluters
Industrial Jurisdiction
No full textWilliam Novak’s New Democracy: The Creation of the Modern American State reveals how the current administrative state evolved to control economic activity through an incremental rejection of state-based common law and police powers in favor of centralized public regulation. This review identifies the business case for the administrative state and presents the first academic treatment of pro-regulation testimony from business interests during congressional consideration of the Interstate Commerce Act. In so doing, this review shows how the concept of industry is as much a legal concept as it is an economic one. This review argues that the nature of regulatory jurisdiction being tied to the concept of industry has implications for current regulatory entrepreneurship scholarship, which examines the ways regulation can be both a barrier as well as a subsidy to business. By explicating the legal significance of industrial jurisdiction, this review identifies the significance of industry and jurisdiction as typologies of interest in the study and adjudication of administrative law