STU Scholarly Works (St. Thomas University)
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Corruption: A Driving Force for Corporate Complicity in Human Rights Violations
No full textCorruption undermines the legitimacy of institutions and processes, the rule of law, and eventually, the state. Over time, the U.N. Human Rights Council has gradually paid increasing attention to the negative impact of corruption on human rights and made recommendations to states on how to combat corruption. Corruption is an inter-national phenomenon, prevalent in all countries regardless of eco-nomic or political systems, and it requires international attention from all stakeholders. The subset of a population that feels the effects of corruption are those disadvantaged groups, who typically have less opportunities to participate in the implementation of public policies and lack the resources to defend themselves when their rights have been violated
To Procreate or Not to Procreate
No full textBook: Human Flourishing: The End of Law
Chapter Description:
Real stories of pregnant women, past and present, shed light on how our laws have evolved to ensure greater recognition of a woman’s fundamental right to reproductive and family autonomy. Today, these rights are in jeopardy. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturning the abortion right frames the issue in terms of the states’ interest in protecting human life; yet the implications for women’s health and human dignity are ignored. I look at several case studies implicating reproductive rights from 1924 to now. I then address Dobbs, concluding that the decision, by focusing on 1868 when women were excluded from the political process, disregards developments in women’s rights in the 20th century, defines fundamental rights too narrowly and ignores evidence of animus towards women seeking to control their reproductive destinies.https://scholarship.stu.edu/faculty_book_chapters/1037/thumbnail.jp
The Investigative State: Regulatory Oversight in the United States
No full textThis book is a timely examination of congressional oversight in the United States, serving as a definitive guide for scholars and political, legal, and media observers seeking to navigate contemporary conflicts between Congress and the White House. Author Daniel Epstein has spent his professional career as a lawyer serving all sides of the regulatory process: he ran investigations for Congress, defended the White House from congressional oversight, and represented individuals, nonprofit news organizations, and entrepreneurs in federal court to fight for regulatory transparency and fairness. Epstein uses historical and observational data to argue that the modern federal bureaucracy did not begin as a regulatory state but as an investigative state. The contemporary picture of Congress having empowered the bureaucracy to set policy through rules is a relatively recent development in the political development of administrative law. The book’s novel econometric models and historical analyses force a shift in how legal scholars and judges understand delegation, congressional oversight, and agency investigations.https://scholarship.stu.edu/faculty_books/1000/thumbnail.jp
Modernizing Notice of Breach Rules to Preserve Contract Remedies
No full textRecently, the legal community has scrutinized the capacity of mandatory arbitration rules to deter or foreclose claims for breach of contract. But little attention has been paid to express and constructive notice of breach rules that are just as effective at foreclosing contractual remedies. While four-year statutes of limitations are typically viewed as the default cutoff time for breach of contract claims, contracting parties, particularly buyers ofgoods, must act much sooner to preserve their legal remedies. It is now common practice for sellers to require notice of breach within days or weeks of their performance as an express condition precedent to buyers\u27 right to a remedy. Even in the absence of express notice rules, state laws require that buyers provide notice to sellers within a reasonable timeframe when they discover, or should have discovered, the breach. Failure to provide proper notice bars all buyers\u27 remedies. In effect, failure to satisfy the technical requirement of notice routinely produces forfeiture of contract remedies for the buyer. Such a forfeiture is contrary to the foundational doctrinal promise of adequate remedies for breach, anti-forfeiture rules, and the substantial performance rule for constructive conditions. Judges adjudicating notice defenses rely on an antiquated legal framework, crafted more than a century ago in a vastly different commercial environment. When the notice requirement was codified in 1906, it impacted merchant buyers who contracted directly with sellers for specific goods. Caselaw shows that sellers raised a notice defense when they sued buyers for the contract price, and that buyers sought an offset to damages by arguing that sellers provided defective goods. In the early twentieth century, courts routinely granted the damages offset for breach of promise, even when notice was untimely. Now, notice issues often arise in adhesive transactions in which buyers contract with downstream sellers of mass-produced goods such as vehicles, food products, dietary supplements, drugs, and medical devices. Sellers are usually aware of the breach or face no repercussions from buyers\u27 failure to provide notice. Product testing, customer complaints, post-sale audits, lawsuits, regulatory policing, and warranty software or warranty claims often give sellers actual notice oft heir defective performances. Yet judges continue to insist on individualized and particularized notice from each buyer. Judges theorize that sellers will be robbed of their legal rights to cure or settle claims, prepare defenses, or know their terminal point of liability, even though sellers\u27 curative or defensive interests are unimpaired. This judicial insistence on notice in the current commercial environment ignores how sellers and buyers respond to breach events. It also incentivizes sellers to fabricate and market defective products because only a small percentage of buyers will complain, and even fewer will satisfy the notice rule. This Article proposes that judges adjudicate notice defenses within the broader framework of the parties\u27 agreement, contract doctrine, and new commercial realities. Specifically, it proposes that judges require sellers to prove material harm when they seek to forfeit buyers\u27 substantive remedies on technical notice-failure grounds. This new standard would provide uniformity in the law and replace the ad hoc exceptions judges have used to avoid the harsh effects of pre-suit notice. A notice-prejudice requirement would also encourage sellers to create better products and honor the warranties they provide when marketing their goods
Is Originalism A Fandom?
No full textDuring confirmation hearings for the U.S. Supreme Court in March 2022, Justice Kentanji Brown Jackson briefly remarked upon originalism as a method of constitutional interpretation. What significance should we attribute to a successful nominee of a Democratic president speaking in relatively favorable terms about a judicial philosophy espoused by all three nominees of the Republican predecessor? For some, the moment indicated the victory of originalism. For others, it demonstrated that originalism has expanded so broadly as to be essentially meaningless. Following an unprecedented leak of a full draft opinion in early May, in late June 2022 the Court issued its decision in Dobbs v. Jackson Women\u27s Health, overruling Roe v. Wade and Planned Parenthood v. Casey and thereby abrogating a constitutional right to abortion regardless of the stage of pregnancy. For some, the majority opinion by Justice Alito is rightly characterized as originalist due to its significant reliance on a discussion of U.S. legal history in justifying the doctrinal reversal. For others, the opinion does not reflect originalist methodology in its analysis. Who is right? How would we go about determining the answer? Is it possible in each instance that both perspectives are right?
These two examples are the most recent highly visible controversies over the definition and nature of originalism. In the scholarly literature we can find many more, advancing or critiquing originalism both in theory and in practice. Why would some scholars desiring to defend progressive and inclusive case law seek to recharacterize evolving contemporary norms as a product of historically grounded originalism? How should we conceive of originalism when self-described originalist scholars maintain that their version of theoretical originalism should be dissociated from the methods or analyses put forward in practice by self-identified originalist judges? After decades of numerous iterations of such dilemmas, the traditional parameters of constitutional theory have inspired much debate and attained little consensus about originalism. From an interdisciplinary perspective provided by the field of fan studies, however, these dynamics quickly come into focus. For at least the past half-century, originalism has played a prominent role in U.S. constitutional theory. For a quite similar length of time, Star Wars has been a popular culture phenomenon in the United States. Their respective interpretive communities confront the same challenges. Both involve highly contestable issues of interpretation of an iconic text, including the scope and solidity of its initial meanings and the evolution of the text itself over time. Both wrestle with the influence of distorted historical narratives, nostalgia, and forces resisting more inclusion and pluralism. Both include interpreters seeking to discern a singular objectively provable meaning when the text at issue not only contains numerous generalities and indeterminacies, but also carries a profound emotional, cultural, and personal significance to its interpreters and the broader community in which their interpretive analysis occurs. Consequently, while it may be more intuitive to associate a global media franchise like Star Wars with analysis of fandom, the features present in originalism have many significant parallels. When viewed through the lens of this comparison, we can ask the question: is originalism a fandom
Senate Bill 2-A: The Laws It Changed and Its Impact on Past, Present, and Future Claims
No full textFlorida was admitted as the 27th state on March 3, 1845. For the majority of its existence as a state, consumer protections have been a cornerstone of Florida insurance law. In 1893, as the state grew, the Florida legislature enacted the first statute which authorized the recovery of reasonable attorney fees against life and fire insurance companies. In 1982, recognizing the need for further consumer protections, Florida created the Civil Remedy statute authorizing a first-party civil action against insurers due to bad faith conduct; however, despite such consumer protections remaining necessary to “level the playing field” between corporations and consumers, Florida, from the governor’s office down, has recently crusaded to remove such safeguards. Through a legislature governed by a Republican supermajority, these historic protections have been stripped away through the passing of Senate Bill 2-A. While Senate Bill 2-A enacted a wide range of reforms, some of which do, in fact, favor consumers, this analysis will concentrate on the changes to the long-standing attorney fee and bad faith statutes in the context of property insurance policies. First, the history, intent, and application of such laws by courts throughout the state will be addressed. The recent legislation altering these long-standing laws will then be examined. Finally, a complete analysis regarding the potential retroactive application of the newly enacted laws to existing contracts and claims, and the possible effects of the law moving forward, will be performed
A Call for Transparency in Sports to the Government of Puerto Rico
No full textMuch like a state, Puerto Rico is self-governed, but cannot interfere with federal law. However, sports federations in Puerto Rico are not governed by the existing applicable federal law. Sports federations are avoiding most of the strict regulations imposed by federal acts, mainly because Puerto Rico has its own Olympic identity, and is recognized by the International Olympic Committee as a separate country. As a result, the language on the federal acts has been interpreted to only apply to those organizations representing the United States. Because of this, federations avoid strict auditing procedures, and other regulations, which consequently have deterred athlete’s rights, as well as the long-term development of sports on the island. Using the New Haven School of Thought, also known as Policy-Oriented Jurisprudence, this article analyzes the problem of lack of regulation in sports in Puerto Rico, how it has impacted the community, presents the decisions made to address this issue, and develops recommendations to improve solution
Tick, Tock: Clarifying The FMLA Statute of Limitations for Claims Involving Absenteeism Policies
No full textThis Comment addresses the ambiguity within the FMLA statute of limitations, specifically the contested interpretation of “last event.” Part II provides background on the FMLA, including its history, purpose, and relevant provisions such as eligibility, rights, and enforcement thereunder. Part III analyzes how federal circuit courts are split on the interpretation of “last event” and how this affects the timeliness of FMLA claims. Part IV proposes amending the FMLA regulations to clarify the limitations period using the Barrett holding that “last event” constitutes the last denial of FMLA rights. Finally, Part V concludes, asserting that if this solution is adopted, the circuit split will be resolved, thereby addressing the ambiguity associated with the accrual period for FMLA claims involving absenteeism policies
The United Nations Human Rights Committee: The Evolution of the Punishment of the Death Penalty
No full textAs a former member and Chairperson of the Human Rights Committee, I will address the issue of death penalty based on three instruments:
First: Article 6 of the International Covenant on Civil and Political Rights dealing with the right to life.
Second: The Second Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of death penalty.
Third: General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights, on the right to life
Exploring the Worldview of Religious Sister: A Comparative Empirical Analysis of Altruistic/Voluntaristic Attitudes
No full textReligious Sisters within the Roman Catholic Church (sometimes referred to as Women Religious or simply Nuns ) are involved in fundamental economic and social development, human rights, and anti-slavery/anti-human trafficking work around the world, as well as driving essentially feminist and economic equality agendas within the wider the populations and communities in which they live. Much of the work carried out by these Religious Sisters resembles that of non-sectarian Non-Governmental Organizations (NGOs). But, unlike most NGOs, the Religious Sisters tend not to: work to a specific job description, produce annual reports, release the results of monitoring and evaluation, prepare grant proposals setting key performance indicators for their programs, and only rarely attend conferences of the NGO community operating within the same social change/human rights milieu. There are also essential differences between Religious Sisters and non-sectarian development and aid workers in their mode of working, their level of involvement and commitment, and in their psychological (they might say spiritual ) orientation to their work. In a previous research study, we sought to elucidate the work-lives and skills that typify the day-to-day existence of Religious Sisters, and through them, give us a better understanding of their relatively undocumented and unanalyzed orientations and work practices. In that work, we sought to decipher the skillset of Religious Sisters. In this study, we explore attitudinal differences between Religious Sisters and a larger population of charity supporters. To do so we must first review the findings of the previous study