STU Scholarly Works (St. Thomas University)
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The President\u27s Welcome Address (2012 Intercultural Human Rights Law Review Symposium)
No full textRev. Monsignor Franklyn M. Casale\u27s welcome address for the 2012 Intercultural Human Rights Law Review Annual Symposium
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 25, Issue 1, Fall 2012
Back to Freedom: From Surviving to Thriving an Introduction
No full textTrafficked persons, even before they are tricked, coerced or forced into domestic servitude generally come from vulnerable and/or disadvantaged groups consisting primarily, though not exclusively, of women and children. Kevin Hsu observes that historically, domestic servants and victims of domestic servitude in the United States tend to come from poor and marginalized groups, and that their day-to-day relations with their \u27master\u27 is one of dependence and subjection, of discipline, governance, and control. .The economic relation of subordination is commonly reinforced by social or sub-cultural mores, which hold trafficked persons responsible, and even grateful to the trafficker, despite the fact that the trafficked persons understand at a deep and personal level the suffering they themselves go through
Immigrant Laws, Obstacle Preemption and the Lost Legacy of McCulloch
No full textWith the federal government\u27s perceived failure to enforce the immigration laws as a backdrop, this paper explores how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. The third is a tendency to no longer explicitly apply the presumption against preemption, and in some cases, to do exactly the opposite: presume preemption.
The Court’s decision in Whiting is a harbinger of things to come, as challenges to state and local laws regulating immigrants make their way to the Court and a growing number of states adopt their own versions of Arizona’s S.B. 1070 and the Legal Arizona Workers Act. I first offer an overview of preemption jurisprudence, focusing on the nearly-forgotten legacy of McCulloch v. Maryland in planting the roots of obstacle preemption. I also examine recent case law showing a tendency on the Court’s part to substitute impossibility and obstacle preemption with a “direct conflict” or “logical contradiction” test. I then address the implications for S.B. 1070 and state and local copycat laws of the Supreme Court’s and lower federal courts’ apparent willingness to uphold state laws modeled after federal law when enacted to redress a gap in federal enforcement.
I conclude that the Supreme Court’s adoption of a new direct conflict test as the standard for conflict preemption would be a dramatic paradigmatic shift that would provide lower courts with the means to uphold state and local laws regulating immigrants and immigration to the extent that these laws track federal enforcement measures
Navigating the Uncharted Waters of Teaching Law with Online Simulations
No full textThe Internet is more than a place where the Millennial Generation communicates, plays, and shops. It is also a medium that raises issues central to nearly every existing field of legal doctrine, whether basic (such as Torts, Property, or Contracts) or advanced (such as Intellectual Property, Criminal Procedure, or Securities Regulation). This creates tremendous opportunities for legal educators interested in using the live Internet for experiential education. This Article examines how live websites can be used to create engaging and holistic simulations that tie together doctrine, theory, skills, and values in ways impossible to achieve with the case method. In this Article, the author discusses observations stemming from his experiences teaching law courses using live, online role-playing simulations that cast students in the role of attorneys. The Article concludes that such simulations have significant benefits for law students and can also benefit scholars who use simulations proactively to deepen the synergies between their teaching and scholarship. However, the resources required for simulations may also exacerbate long-standing systemic tensions in legal education, particularly regarding institutional resources as well as the sometimes conflicting roles of faculty as teacher-scholars. Because the American Bar Association will almost certainly, and appropriately, require law schools to expand their simulation offerings, the benefits and tradeoffs of simulations teaching must be addressed now
Opening Remarks (2012 Intercultural Human Rights Law Review Annual Symposium)
No full textDean Douglas E. Ray\u27s opening remarks for the 2012 Intercultural Human Rights Law Review Annual Symposium
Domestic Servitude: A Contemporary Form of Slavery
No full textRemarks by Roza Pati, Professor of Law & Executive Director of LL.M. / J.S.D. Program in Intercultural Human Rights entitled Domestic Servitude: A Contemporary Form of Slavery
The New York Domestic Workers\u27 Bill of Rights: Justice at the Door
No full textPart I of this comment will begin with an overview of the intersection between domestic work and involuntary domestic servitude to show how the lack of protection for domestic workers can lead to exploitation and domestic servitude. Part II will compare the claims of domestic workers, employers, and civil society in terms of the costs and benefits of enacting protective domestic worker legislation. Part III will set out the legal distinction between domestic workers and domestic servitude by providing an overview of the federal and New York State sources of labor protections and how they have historically excluded domestic workers. It will also describe the federal and international human trafficking laws utilized to protect victims of domestic servitude, and how the courts have interpreted them, as well as delineate the provisions of the New York legislation. Part IV will predict the impact of the New York law and the proposed California Bill. Part V will offer recommendations for national coverage of labor protections for domestic workers, amendments to relevant federal laws, and treaty ratification
Extreme Makeover - Contract Law Edition: A New Home for Human Rights and Social Responsibility (Lessons from Israel)
No full textThe article proceeds as follows: Part II explores various aspects of the social transformation of private law in Israel, beginning with a discussion about the theoretical and practical roles of contract law-the classic and distinctive realm of private and voluntary law. This area leads to the legal assimilation of social responsibility and consideration for the expectations of others, promotes the development of a holistic approach to law, and exposes its social and public purpose. Consideration for the justified expectations of the other and for the fundamental principles of the legal system, even within the context of purely voluntary interactions, emphasizes both the publicization of contract law and the privatization of fundamental social principles into this interaction. This two-way relationship between the public and the private, which subverts the anachronistic distinction between public and private law, reflects the influence and the quasipublic (or indeed public) character of all social actors, and sharpens the social context of all human interactions. In brief, contract law is extremely well suited to provide means to assimilate the social revolution into law generally. This is mainly because of the characteristics of contract law, but it is also due to its close ties to every individual and to all social components of everyday life, as well as its association with comprehensive and diversified social values. The main purpose of contract law is to enable individuals, as social animals, to create various kinds of relationships, to realize their autonomy, and to provide most of their needs voluntarily through coordination, cooperation, and mutual concessions. In this sense, it is evident that responsibility and freedom are not mutually contradictory, but rather draw on each other. Recognizing the power and responsibility of individuals in the context of interpersonal relationships improves the protection of basic liberties and confirms the inextricable role of all components of the legal system, not only of government authorities, in the structuring of a freedom-seeking society. After developing the claim justifying the inherent social standing of contract law, Part III explains the contractual processes and means through which the ideas of social responsibility and solidarity are assimilated into private law. The gist of these processes and means is the use of the good faith and public policy principles in contract law. The good faith principle, in particular, has been widely accepted and applied in Israel. The principle has been included in the second section of a proposed codification of civil law, prominently placed in the opening chapter dealing with basic principles. Invocation of the good faith principle continues to be a powerful means of importing social responsibility and proper interpersonal behavior into private law, as well as of strengthening the social context of many different human interactions. The principle has been defined as establishing an objective criterion for the fair behavior of rights holders seeking to realize their personal self-interest against the background of the general social interest, while also taking the interest of the other into account. Even before the enactment of the Israeli Basic Laws dealing with human rights in the early nineties,\u27 good faith was recognized as a mandatory objective principle that sets standards for proper inter-contractual or interpersonal relationships.\u27 Good faith establishes a minimal level of decent behavior between individuals that reflects what is perceived as proper in our society...reflects a suitable balance between conflicting human rights, and is incumbent on every person in Israel performing legal actions. Many other instances of this trend could no doubt still emerge. This approach has strengthened the social and normative standing of every contractual negotiation and interaction, as well as every non-contractual legal action. The good faith principle\u27s grounding in social concerns, its formulation as a general standard, its mandatory and normative standing that calls for taking into account the other\u27s justified expectations, and its broad implementation - have all turned it into the most essential element. This has set the stage for the absorption of other social and public principles (such as human rights) into law in general, and contract law in particular. The good faith principle thus became a significant tool for mediating between the private view of legal interactions and the view that legal interactions are inextricably bound with social and public considerations, long before the explicit approach dealing with the percolation of public law into private law came into being. Part IV of the article focuses on the birth pangs of social responsibility as it is developing in contract law in Israel. The process appears to have gone too far in diluting the a priori social goals of contract law, and lacks a consistent, coherent backbone. Accordingly, a proposal will be formulated to trace the suitable scope of social responsibility imposed by contract law according to the considerations detailed in this section