STU Scholarly Works (St. Thomas University)
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Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 25, Issue 2, Spring 2013
Implications of United States v. Jones on DNA Collection form Arrestees: Trespass Prohibited by the Fourth Amendment
No full textThis comment discusses the constitutionality of warrantless DNA collection from arrestees, and proposes an analysis that the Supreme Court should use when deciding on this issue to find that this practice violates the Fourth Amendment. Part II of this comment discusses the general development of DNA collection laws, how the laws have expanded to include persons that have been arrested but not convicted of certain crimes, and the procedures used to collect the DNA samples. In addition, Part II includes a survey of the conflicting decisions by courts across the country and demonstrates the disagreement over the constitutionality of this particular practice. Part II also argues that DNA collection and fingerprinting are not analogous in particular circumstances. Part III summarizes the evolution of Fourth Amendment jurisprudence, and how it is shifting back to the trespass interpretation originally used by the courts. Part III also analyzes how the collection of DNA is a search under the Fourth Amendment. In Part IV, this comment discusses how the Supreme Court should handle the issue of warrantless DNA collection from arrestees and proposes that the trespass test used most recently by the Supreme Court in Jones should also be applied to this issue to find that the collection of DNA is a violation of the Fourth Amendment
Obama\u27s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform
No full textThis article explores how Deferred Action for Childhood Arrivals (DACA) emerged both from thwarted efforts at immigration reform and the Supreme Court’s highly anticipated decision in Arizona v. United States. I argue that DACA not only was adopted in response to repeated failed efforts to pass the DREAM Act; it was also promulgated in anticipation of a possible favorable ruling by the Court on S.B. 1070. In Part I, I examine the current separation of powers crisis in immigration policy. I look at both the context in which DACA was adopted and at challenges to DACA in Court and in Congress. I classify the constitutional arguments against DACA into four different categories: 1.) The Youngstown/Curtiss-Wright Dichotomy; 2.) The Non-Delegation Doctrine Resurrection; 3.) The “Take Care” Clause Crisis; and 4.) The Notice and Comment Myth. In Part II, I address the federalism crisis. I argue that DACA was aimed at least in part at weakening the potential impact of S.B. 1070 by carving out a class of individuals who the states could not target and placing them in a quasi-legal status that hopefully would immunize them from state enforcement of the immigration laws. I examine deferred action as one of many twilight statuses where beneficiaries enjoy temporary relief from removal, (often) eligibility for work authorization, and (sometimes) the prospect of lawful residency. I look briefly at subfederal responses to DACA, including several states’ denial of driver’s licenses to DACA recipients. I ultimately conclude that DACA was a justifiable assertion of Executive authority in the face of gridlock in Congress and restrictionism in many states. DACA fell squarely within Executive enforcement powers under an expansive interpretation of congressional and Executive authority that has deep roots in the plenary power doctrine, case law going back over a century, the well-established use of deferred action and similar forms of prosecutorial discretion, and the broad delegation of powers by Congress to the Executive under the Immigration & Nationality Act. In short, like Dorothy’s ruby slippers, the Administration’s power was there all along. In announcing DACA on the eves of the Court’s decision in Arizona v. United States and the 2012 elections, the Obama Administration took a bold political move that not only may have won him the election but may have reenergized his Administration, restored balance in the government, and laid the foundation for comprehensive immigration reform. At the same time the Administration in its final term needs to work within the constraints of the Constitution, focus on reform in Congress, and not establish a precedent for unilateralism that will be subject to abuse in future administrations
Human Trafficking: An Issue of Human and National Security
No full texthere can be little doubt that trafficking in human beings, this billions-of dollars illicit industry, is a horrendous by-product of global poverty and the unchecked greed. As this avalanche of people enslavement rolls down into our communities, it is adversely impacting the individual, the nation-state and humankind. It is as much endangering the security of the individual human being as it is interfering with the security of the nation. Hence, in this day and age of technology and globalization, the concept of national security, should, in accordance with our values, include human security, as the only way to effectively counter global threats and to achieve a public order of human dignity Back in 1945, Edward Stettinius Jr., U.S. Secretary of State, reporting on the San Francisco Conference that established the United Nations, noted, with remarkable foresight: “The battle of peace has to be fought on two fronts. The first is the security front where victory spells freedom from fear. The second is the economic and social front where victory means freedom from want. Only victory on both fronts can assure the world of an enduring peace.” Today, almost 70 years later, we are still struggling to be free from fear, free from want, and free to live a life of dignity in our communities. In the context of human trafficking, interference with these freedoms is both its cause and its consequence. This paper will first focus on defining the notions of national security and human security, then describe the scope and magnitude of human trafficking globally, in our Western hemisphere, as well as in our own Sunshine State, analyze the connection of human trafficking to national security, and conclude with a brief appraisal and recommendation
Feeling Empty? Organ Trafficking & Trade: The Black Market for Human Organs
No full textOrgan trafficking is the recruitment, transport, transfer, harboring, or receipt of persons by means of force, fraud, coercion, abduction, positions of vulnerability and exploitation, with the purpose being the removal of their organ(s) for transplantation. Currently, organ trafficking is affecting countries such as China, Mexico, Kosovo, South Africa, Mozambique, India, the Unites States, and Israel. These countries each play different roles in organ trafficking; some serve as countries of origin, others are destination countries, and a few are both origin and destination countries. This article will examine (1) the history of organ trafficking and how it takes place, and (2) why organ trafficking is a growing problem and how its increased demand is exasperating the problem. This article will also (3) analyze the legal responses to combating organ trafficking, (4) make predictions about how current United States legislation will be implemented and enforced to prevent organ trafficking, and (5) recommend how to combat organ trafficking by creating alternative methods to legally obtain organs
Failure of The International Monetary Fund & World Bank to Achieve Integral Development: A Critical Historical Assessment of Bretton Woods Institutions Policies, Structures & Governance
No full textScholars worldwide have clearly demonstrated the inability of the Bretton Woods Institutions (the BWIs ) to promote authentic sustainable development.\u27 Some have criticized the BWIs for their inability to rehabilitate, evolve, and reform their respective policies. Some scholars argue that the core of this problem is the voting structures of the BWIs. Additional critiques address the lack of transparency and limited participation by developing countries in formulation of BWIs\u27 policies; both deficiencies have resulted in fewer developing countries benefiting from these policies. Acknowledging these critiques, this article will argue that current BWI policies must be fundamentally redesigned, since many are archaic and others are counter-productive to integral sustainable development in the current global economy. Further, the article will argue that the dominant nations in the BWI have forced their political agendas on the rest of the world while hiding behind the veil of these multilateral funding institutions. In making these arguments, the article will begin with a review of the origin, purpose, and structures of the BWIs and offer a brief critique of their voting structures. Next, this article will analyze and critique the neoliberal revival of the classical laissez-faire liberal ideology now on a global scale, and show how it has played out in the Asian financial crisis, the current world financial crisis, and the on-going debt crisis. Two case studies will then be provided and discussed: one on Argentina; and a second on Sub-Saharan Africa. The paper will then analyze other institutions\u27 alternative solutions to the ongoing problems with the BWI, specifically the Monterey Consensus, developed by the United Nations Financing for Development process, the Heavily Indebted Poor Countries, created by the World Bank, and the G-20, a policy-advising group of 20 countries claiming to represent the most systemically significant world\u27s economies. Finally, a conclusion will summarize this article\u27s critique of the BWIs and suggest alternative lines of strategy. Part II first reviews the events and global instability that led to the Bretton Woods Conference creating the early BWIs, and then explains the Bretton Woods Conference itself and the global response to the creation of the BWIs. Part II then concludes with a critical analysis of the IMF and World Bank voting structures. Part III begins by showing how neoliberal agendas influence the policies of the BWIs through vote and governance. A historical analysis of the rise of the contemporary neoliberal ideology is then provided. At the heart of this has been the University of Chicago School of Economics, led by the late Professor Milton Friedman, and the Austrian School of Economics. Both were highly influential in developing a new and problematic model of so-called global \u27development\u27 for the BWIs. Part III then examines loan conditionality; the mechanism by which the BWIs pressure other countries into accepting neoliberal ideas. Part III concludes by providing a critical analysis of the neoliberal ideology in its application to the Asian Financial Crisis, along with case studies showing its impact on Argentina and Sub-Saharan Africa. Part IV analyzes alternative solutions, which have been put forth by various global endeavors. It begins with an examination of the Monterrey Consensus, the product of an international conference held in Monterrey, Mexico. Part IV then examines The Heavily Indebted Poor Countries, a program created by the World Bank and the IMF, which currently classifies forty developing countries with high levels of poverty and debt which are eligible for special assistance.\u27 Finally, the G-20 is a group of twenty countries that hold periodic meetings to review and promote discussions pertaining to the promotion of international financial stability and the governance of the world economy. Finally, Part V concludes that the BWIs, due to their lending policies and governing structures, have restrained true global development. The BWIs have served as impediments to authentic development and these institutions are in need of fundamental reform including overhauls to their policies, voting systems, and governance structures. Part V proposes alternative strategies for authentic sustainable development through other multilateral global institutions
The State and Indigenous Peoples: The Historic Significance of ILA Resolution No. 5/2012
No full textBook: Der Staat im Recht.: Festschrift für Eckart Klein zum 70. Geburtstag.
The state in law – supported by and bound by the law, oriented towards the common good and individual rights in equal measure – is the object and goal of Eckart Klein\u27s scientific work. Eckart Klein, whose 70th birthday is the occasion for this commemorative publication, has devoted himself as a legal scholar to public law in its entire range, whereby his work at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg and his time as a research assistant at the Federal Constitutional Court have had a lasting impact on his interests and focused. Accordingly, important topics of his publication activity throughout his academic career are constitutional procedural law, general international law, the law of international organizations and the international protection of human rights. After a stint at the Johannes Gutenberg University in Mainz, he moved to the University of Potsdam. Here he also founded the Human Rights Center of the University of Potsdam, of which he was director. The lawyer supplemented his work as a university lecturer by holding judicial offices at the Higher Administrative Courts in Koblenz and Frankfurt (Oder) as well as at the State Court in Bremen. He was also a member of the United Nations Human Rights Committee and participated several times as a German ad hoc judge in proceedings before the European Court of Human Rights. The fact that academic teaching was not neglected in all of this was Eckart Klein\u27s top priority. In this commemorative publication, students and companions have brought together contributions from the fields of international law, European law and national law in order to explore the position of the state in law from different perspectives, to mark the limits of state action and to ask for standards for sovereign decisions.https://scholarship.stu.edu/faculty_book_chapters/1022/thumbnail.jp
Marching Across the Putative BIack/White Race Line: A Convergence of Narratology, History, and Theory
No full textThis Article introduces a category of women who, until now, have been omitted from the scholarly literature on the civil rights movement: northern white women who lived in the South and became active in the civil rights movement, while intending to continue to live in the South on a permanent basis following their activism. Prior to their activism, these women may have been viewed with suspicion because they were newcomers and outsiders. Their activism earned them the pejorative label civil rights supporter. This Article presents the stories of two such women. It examines their stories from the perspective of the legal narratology movement and compares them with white female activists in other categories. Next, it analyzes their experiences through the lens of therapeutic jurisprudence. This analysis provides another perspective and voice, and deeper understanding of the tumult of the civil rights era. Like works on other categories of women who participated in the civil rights movement, this Article enhances our knowledge of the civil rights movement, race relations, and the roles played by women
Estates in Land and Future Interests: Problems and Answers, 6th Edition
No full textThis workbook provides a basic, systematized account of the rules and classifications of estate law. Problem sets in each chapter, let students practice applying the rules and assigning the classifications of this intricate area of law in hypothetical situations.https://scholarship.stu.edu/faculty_books/1015/thumbnail.jp