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Diminished Returns: The Exorbitance of Collecting DNA from All Arrestees
No full textThis comment will examine the effects of a criminal justice system where DNA is collected from everyone who is arrested, regardless of the seriousness of the charge. Part L.A will begin with an analysis of King to provide an understanding of how the Supreme Court decision may permit states to collect DNA from all arrestees. DNA is used in the criminal justice system because of its ability to effectively identify people. Part I.B discusses DNA science and provides a cursory understanding of how information is gathered from an individual\u27s genetic code. Part I.C displays how law enforcement uses DNA for criminal investigation. Part I.D proves the current use of DNA database searches gives law enforcement pervasive power. If DNA is collected from every arrestee, knowledge of its use, certainty, and effectiveness would become widely recognized. If crime is a rational choice, this knowledge could potentially become a factor in the decision to commit crime. Part II examines whether the certainty and effectiveness of DNA forensics could deter crime. However, social forces may affect an individual\u27s capacity to weigh the positive and negative consequences of committing a crime. Like Maverick, potential criminals may engage in behavior despite the monumental risks of suffering negative consequences. Unlike Maverick, criminals are far more likely to suffer these negative consequences because DNA forensics is a very effective tool. Part III analyzes how the collection of DNA from all arrestees may not deter crime and may thus provide only a small benefit when compared to the substantial costs that will be incurred by expansive collection
Marshalling the Forces of Good: Religion and the Fight against Human Trafficking
No full textThis paper finds its inspiration in the Social Doctrine of the Catholic Church that also addresses the brethren of other Churches and Ecclesial communities, ... the followers of other religions, as well as. . . all people of good will, who are committed to serving the common good. Elated by a sign of our time, the openness for dialogue amongst religions and their understanding of the urgent need for a joining of their forces to promote justice, fraternity, peace and human development, this paper does not aim at praising or blaming one religion over another, but looks at the issues it addresses in a problem-oriented, holistic way, highlighting the avenues where religions converge, rather than the ones in which they diverge from each other.For starters, if there is one common denominator that all faiths subscribe to, it would likely be the doctrine of social justice and interaction on the basis of common moral values: equality amongst human beings, justice and mercy with a responsibility to care for the underprivileged. If we think of one major common role that all faiths could effectively play for the benefit of global society with respect to human rights, that role would most likely be the engagement of community action to influence legislation and policy inspired by the moral values that foster the dignity of the human person. If we were to focus on one common target for all faiths today to play such a crucial role, that target would be the mobilization to set free the most oppressed of our brothers and sisters, who are living in de facto slavery in our modern times. Enslavement and institutions analogous to slavery exist to such an embarrassing extent and in such a magnitude, inter alia, because, in the view of this author, religion is a resource that has not been tapped to the fullest of its immense capacity; because we, as a society of faith, have overlooked the incompatibility that exists between faith, violence and exploitation; because we have been remiss to harness the force of the soul, to live a faith that is not ornamental, to make use of the incomparable power of religion to inspire and lead corrective action. Conceptually and practically, religion can and should be the catalyst that brings forth a unified outcry and a call to action of the world\u27s seven billion people against human trafficking. Religion and its people of faith are indeed the greatest source of moral strength and determination that is required to end human trafficking. Their contribution can be the dynamo that powers the generator, which works to reduce the vulnerability that sustains the readily available supply of victims; they can confront head-on the sinful human greed that breeds the unbridled demand for everything material, cheap products and services, as well as for adult entertainment; they can be the powerful source of influence on government to restrain zones of impunity for traffickers as well as to close down the safe financial havens for the proceeds of the crime. And, above all, in their own right, religions can and should take a clear and firm public stance against modern slavery. But how can religion meaningfully perform such a complex function? How can it facilitate the filling of the gap between the letter and the spirit of human rights that Pope Francis so rightfully laments? A look at the past and an observation of the present might help us elucidate the proper role of religion for the near and the more distant future
Introducing the New Handshake to Expand Remedies and Revive Responsibility in ECommerce
No full textAccordingly, this essay discusses how use of ODR [online dispute resolution] systems may help address the problematic results of the SWS [squeaky wheel system] in B2C [business to consumer] exchanges. Part II of the essay discusses possible reasons why the SWS has flourished in the consumer marketplace and provides some of the applicable behavioral, social, and empirical research. Part III then uncovers problematic consequences of the SWS in B2C exchanges, and Part IV proposes the New Handshake through tailored ODR systems that offer consumers efficient and fair means for accessing remedies with respect to their purchases. Part V concludes with an invitation to continue the development of such ODR systems in an effort to foster revived corporate responsibility and bridge the growing gap between the consumer haves and have-nots
The Right to Contract as a Civil Right
No full textIn the first section below, I delineate what I believe to be the still-dominant and quasi-constitutional conception of the right to contract, as it has been understood at least from the Lochner era to today. In the second section, I contrast the Lochnerian constitutional right to contract with the civil right to contract. In the third section, I show that the civil right to contract, unlike the constitutional one, is fully consistent with our modem civil rights laws and broadly understood. In the third section, I also explore the relationship between the civil right to contract and civil society, where I will suggest that rather than being in tension with it, the civil right to contract is one of the core, and perhaps the core architectural foundations of civil society. The conclusion briefly recapitulates the argument
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 26, Issue 4, Summer 2014
Donee Beneficiaries and The Parol Evidence Rule
No full textDonee beneficiaries are pretty peculiar. They own the rights created by a contract created by others. Their rights have primacy over the promisee\u27s rights\u27 but the promisees have enforceable rights as well. The donee beneficiaries may be totally unaware of these enforceable rights for which they have not given consideration. For purposes of this essay, donee beneficiary means any intended beneficiary other than a creditor beneficiary. A creditor beneficiary is a promisor who assumes a debt that will satisfy an obligation of the promisee to pay money to the beneficiary . ... Thus defined, third party donee beneficiaries are of importance in commercial activity, for example, in an agreement between parent and subsidiary to indemnify a class of individuals. Today, the concept of donee beneficiary has expanded from the intent to create a gift, to anytime there is an intent gratuitously to confer a right other than a right caused by the assumption of a debt owed by the promisee. Parol evidence of one\u27s status as donee beneficiary is the subject of this essay. I do not advocate in this article for any particular version of the parol evidence rule. Once the donee beneficiary is identified, the contract should be subject to the parol evidence rule as any contract. Whether the parol evidence rule in the appropriate jurisdiction is soft or hard, the peculiar nature of the donee beneficiary merits that parol evidence ought to be welcomed and admitted. The status of donee beneficiary should be exempt from all formulations of the parol evidence rule. At the very least, evidence of surrounding circumstances should be admissible as it is in some jurisdictions in donee beneficiary cases
The Priest-Penitent Privilege Revisited: A Reply to the Statutes of Abrogation
No full textThere is no gainsaying the fact that the near-pandemic social ill of child sex abuse calls for urgent attention given the many dire effects of the crime. Harm to children is not suffered by them alone. The immediate family, parents, and friends also suffer with them. Moreover, society is burdened by the existence of child sex abuse as it is called on to restore the physical and mental health of these often traumatized younger members. To nip this problem in the bud, pursuing the philosophy of early detection, all fifty states, the District of Columbia, American Samoa, Guam, Puerto Rico, and the Virgin Islands have enacted statutes that mandate certain individuals to report known or suspected cases of child abuse to stipulated authorities and criminal sanctions are imposed for failing to report. The Catholic Church has been, in recent times, on the front pages of newspapers regarding instances of child sex abuse. Priests have been accused and, in fact, convicted of the crime. As a consequence, there has been a call for the repeal of priest-penitent privilege statutes in cases of child sex abuse. While many states retain the priest-penitent privilege, some states, such as Connecticut, Mississippi,\u27 New Hampshire, North Carolina, Oklahoma, Texas, and West Virginia, abrogated it in cases of child abuse. This paper intends to examine the constitutionality of these priest-penitent privilege-abrogating statutes. The effect of the abrogation is that priests would be compelled on subpoena to disclose the confessions of an alleged child sex abuser.\u27 They would also be required to testify in court about allegations of child abuse, even if they learned about it in confidential counseling sessions. The statutes, in plain language, are telling child abusers, especially sexual abusers, that they no longer have a hiding place and can no longer use the seal of confession as a protective shield. The implied assumptions of these statutes are: (1) that the seal of confession aids and abets child abuse; and (2) priests have caused the high prevalence of child sex molestation in society
The Death Knell of Issue Certification and Why That Matters after Wal-Mart v. Dukes
No full textThis article begins by examining the effect of Dukes, detailing in Section I how the Court\u27s pronouncement has been felt most acutely by class plaintiffs seeking to certify Rule 23(b)(3) classes. Section II explains why that is significant in light of the Court\u27s most recent cases and orders. It profiles Comcast\u27s unusual trip through the appellate process and offers two competing interpretations of the Court\u27s opinion around which distinct camps at the lower court level have already coalesced. Neither camp, however, the Section argues, understands the disagreement between the majority and dissenting views in Comcast or the Court\u27s other 2013 decision and orders. Section III concludes that when read in context, Comcast guts the controversial lower court practice of certifying discrete issues for class treatment. That matters because after Dukes, trying common issues has been the class counsel\u27s most reliable tool navigating hostile Rule 23(b)(3) terrain
Marshalling the Forces of Good: Religion and the Fight Against Human Trafficking
No full textThis paper finds its inspiration in the Social Doctrine of the Catholic Church that also addresses “the brethren of other Churches and Ecclesial communities, . . . the followers of other religions, as well as . . . all people of good will, who are committed to serving the common good.” Elated by a sign of our time, the openness for dialogue amongst religions and their understanding of the urgent need for a joining of their forces to promote justice, fraternity, peace and human development, this paper does not aim at praising or blaming one religion over another, but looks at the issues it addresses in a problem-oriented, holistic way, highlighting the avenues where religions converge, rather than the ones in which they diverge from each other. For starters, if there is one common denominator that all faiths subscribe to, it would likely be the doctrine of social justice and interaction on the basis of common moral values: equality amongst human beings, justice and mercy with a responsibility to care for the underprivileged. If we think of one major common role that all faiths could effectively play for the benefit of global society with respect to human rights, that role would most likely be the engagement of community action to influence legislation and policy inspired by the moral values that foster the dignity of the human person. If we were to focus on one common target for all faiths today to play such a crucial role, that target would be the mobilization to “set free the most oppressed of our brothers and sisters,” who are living in de facto slavery in our modern times. Enslavement and institutions analogous to slavery exist to such an embarrassing extent and in such a magnitude, inter alia, because, in the view of this author, religion is a resource that has not been tapped to the fullest of its immense capacity; because we, as a society of faith, have overlooked the incompatibility that exists between faith, violence and exploitation; because we have been remiss to harness “the force of the soul,” to live a faith that “is not ornamental,” to make use of the incomparable power of religion to inspire and lead corrective action. Conceptually and practically, religion can and should be the catalyst that brings forth a unified outcry and a call to action of the world’s seven billion people against human trafficking. Religion and its people of faith are indeed the greatest source of moral strength and determination that is required to end human trafficking. Their contribution can be the dynamo that powers the generator, which works to reduce the vulnerability that sustains the readily available supply of victims; they can confront head-on the sinful human greed that breeds the unbridled demand for everything material, cheap products and services, as well as for adult entertainment; they can be the powerful source of influence on government to restrain zones of impunity for traffickers as well as to close down the safe financial havens for the proceeds of the crime. And, above all, in their own right, religions can and should take a clear and firm public stance against modern slavery. But how can religion meaningfully perform such a complex function? How can it facilitate the filling of the gap between the “letter” and the “spirit” of human rights that Pope Francis so rightfully laments? A look at the past and an observation of the present might help us elucidate the proper role of religion for the near and the more distant future
Responsible Solutions: Reply to Tamatha and Campos
No full textAt the end of Brian Tamanaha\u27s instant classic, Failing Law Schools, tracing the economic forces behind exorbitant law school tuition and graduate debt and unemployment, he lays out his plan to help resolve the crisis. He would eliminate tenure, dispense with the final year of law school, rely heavily on adjuncts and apprenticeships, and loosen the ABA accreditation standards mandating one-size-fits-all law schools to allow the marketplace to fashion more affordable models of legal education. Some schools would remain in the traditional, three-year mode, with faculty conducting research. Others would morph into, or spring up spontaneously as, the law school parallel ... of vocational colleges. Very candidly, Tamanaha explained that the two-year law schools... would be dumping grounds for the middle class and the poor .... Few children of the rich will end up in these law schools. He calls the plan \u27differentiated\u27 legal education. Others, including Paul Campos, founder of the Inside the Law School Scam web blog and author of Don\u27t Go To Law School (Unless), and the ABA Task Force ( Task Force ) on the Future of Legal Education, have endorsed Tamanaha\u27s prescription. While Tamanaha and Campos, the leading voices in the call to overhaul legal education, have done well to bring the suffering of law grads and the economic forces behind the crisis to the forefront, the differentiated model they sponsor will gut the public and private good in the present model and, at the same time, exacerbate graduate unemployment. Moreover, a set of measures exists that more directly and effectively addresses the causes of the crisis and preserves the underappreciated good in the present model. With the crisis only worsening and the ABA\u27s recent appointment of the Task Force on the Financing of Legal Education to recommend solutions, the debate on the appropriate measures to take and the proper contours of legal education has taken on added urgency. The trouble with Tamanaha\u27s two-tiered, differentiated model of legal education lies in forging a branch of higher education in the marketplace when it was unchecked market forces that caused the crisis in the first place. Moreover, his plan institutionalizes stratification, demotes legal education from the American academy to trade school status, and aggravates graduate unemployment in the process. The trouble with doing away with tenure is that the legal academy\u27s independent critique of law and the legal system would be lost, ceding the field to those who buy their spokespersons and lobbyists, and law school clinics could not represent unpopular clients and causes without political pressure or fear of reprisal. The trouble with an army of busy adjuncts replacing experienced, full-time professional educators is that adjuncts normally place less emphasis on the rigorous classroom dialogue that promotes analytical thought and effective advocacy. And the trouble with compressing the study of law into one or two years-in the herd of new law schools that will stampede into the market-is that the low-LSAT students Tamanaha designed these schools for are the ones who are most in need of three years of rigorous instruction. The abbreviated programs, moreover, conflict with the long-standing call to do more to train practice-ready attorneys. After I noted these problems in a brief piece entitled The Case Against Tamanaha\u27s Motel 6 Model of Legal Education, both Brian Tamanaha and Paul Campos took strong exception. In The Failure of Crits and Leftist Law Professors to Defend Progressive Causes, Tamanaha objected that I had overestimated the value of legal scholarship relative to its costs, and in a subsequent piece in the Georgetown Journal of Legal Ethics, he disagreed with my criticism of his two-tiered system. In Self-Congratulation and Scholarship, Campos argued that, contrary to my contentions, tenure and scholarship would thrive in Tamanaha\u27s differentiated model, that I had overestimated the value of both, that the model is not a throwback to separate and (un)equal, that talk of teaching analytical skills is an empty slogan for an unnecessary task, and that, as the title of his piece suggests, my views represent the platitudinous self-congratulation of law faculty that, in large[ ] part, caused the crisis. This Article answers the objections of Tamanaha and Campos and offers a set of solutions that, unlike the popular, perilous, often pretextual fixes put forward by Tamanaha and the Task Force, directly targets the actual causes of exorbitant tuition and graduate unemployment while, at the same time, preserving the public and private good in the present model. In Section II, I address Tamanaha\u27s and Campos\u27s rebuttals to my position that one set of law schools for the rich and one for the poor and middle class represent separate and, with regard to educational quality, unequal. In Section III, I respond to Campos\u27s criticism of my view that tenure and scholarship will largely fade away if and when tenure is no longer mandated by the ABA\u27s accreditation standards and, in support of my view, present previously unpublicized evidence about the efforts of law deans to extinguish it. In Section IV, I explain how Campos\u27s rejection of my view that a principal task of the law professor is to cultivate students\u27 analytical skills guts the essence of a legal education and threatens the interests of clients. Section V explains how Campos\u27s thesis that law professors are to blame for the crisis lands far off the mark, and how the charge otherwise serves the effort to push legal education out of the American academy and into the ranks of the trade schools. In Section VI, I place a slightly different emphasis than Tamanaha on the economic dynamics underlying sky rocketing tuition and unemployment and outline five measures that will, by confronting the real causes of the crisis, more directly and effectively help resolve it than Tamanaha\u27s purported fixes. I conclude by joining in Brian Tamanaha\u27s call to the professoriate to actively participate in the quest for solutions, but to sponsor solutions-unlike those of Tamanaha and Campos-that preserve the good in what we do