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 24, Issue 3, Summer 2012
Same Violence, Same Sex, Different Standard: An Examination of Same-Sex Domestic Violence and the Use of Expert Testimony on Battered Woman\u27s Syndrome in Same-Sex Domestic Violence Cases
No full text1971 marked the genesis of the Battered Women\u27s Movement and, since then, remarkable strides have been made to address and combat domestic violence. Today, for example, a myriad of domestic abuse agencies offer an array of services, including: 24-hour hotlines; counseling; safe houses; transitional living; children\u27s services; life skills education; professional training; batterers\u27 intervention; and legal assistance. These strides, however, cannot extirpate two ugly truths: domestic violence still pervades our society, and it afflicts more than those in heterosexual relationships. Anecdotal evidence and a growing body of literature indicate that domestic abuse is not unique to heterosexuals, but occurs in lesbian, gay, bisexual, and transgender (LGBT) relationships, as well. While it is true that heterosexual women are most often likely to experience intimate violence from their male partners, empirical data now suggests that those in same-sex relationships are proportionally as likely to experience violence in their relationships. Moreover, the patterns, modes, and effects of same-sex domestic violence appear to be virtually identical to heterosexual domestic violence
Applying Economic Loss Doctrine to Article 2 Transactions: A Doctrine at a Loss
No full textThe purpose of this Essay is to analyze the treatment and the types of tort and strict liability claims that courts are likely to redirect toward the Code\u27s Article 2 remedies. Part I of this Essay examines the typical application of the economic loss doctrine. Part II considers the bargain policy underlying the Code that supports imposition of the economic loss doctrine in a variety of claims touching Article 2 matters. Part III outlines how the principles of the economic loss doctrine are a limited vehicle for resolution of claims that lie at the outer edges of the bargain as envisioned by the parties. Finally, Part IV conducts an exercise using the Chinese Drywall Litigation to demonstrate how characterizing claims made by aggrieved buyers is a more disciplined approach toward application of the economic loss doctrine. Part IV further evaluates the application of the doctrine to other property claims, including the extent to which the parties may either actually or impliedly take into account certain claims when entering into the sale of goods. This Essay concludes that modern application of the economic loss doctrine preserves the boundary between tort and contract, but should be subject to a less obscure approach that lends greater surety to parties and does not require judicial intervention in most cases
What You Have Said in the Dark: The Evolution of Media in the Courtroom and the New Challenges of Containing the Jury\u27s Information Space
No full textThe trial system is in a form of crisis. Recently, the United States Supreme Court effectively recognized that we no longer have a jury system. Instead, we have a plea bargaining system with the remote possibility of a jury trial at the very tail end of that system. Given the pervasiveness of sensational news stories, the option of settlement may appear more attractive to a litigant because it avoids the public display that often accompanies high-profile trials. This also serves a benefit to nervous judges who, without the stress of a trial, may avoid the onslaught of media pressure for court documents, comments regarding the case, or permission to observe certain proceedings. Finally, settling outside of trial also places bargaining chips in the hands of defendants who might face weak odds for trial. Litigants\u27 desire to avoid trial is likely bolstered by the prevalence of media that now spreads mass amounts of information and misinformation to consumers and jurors at an alarming rate through use of smart phones, laptops, and tablets. Provocative images and half-truths of high-profile trials reach out of television screens and into the bedrooms of incensed viewers. Bias in the media\u27s focus of civil trial coverage, which arguably favors plaintiffs civil judgments as opposed to defense\u27s victories, may also scare litigants from the prospect of going to trial. As a consequence of increased media coverage, the idea of a contained and secure jury information space is increasingly threatened by new media. The courts are in a transition to which the Internet is key. This is a transition at the heart of a tug-of-war between the nature of jury trial and its explosive clashes with hungry media and a volatile public. Ideally, a jury trial creates a separate, isolated information space, which is insulated from the outside. The jury is presented with a crafted body of evidence and called upon to make a decision. The development of the Internet presents an inflection point in the evolution of the communications environment in which judges and the architects of trial attempt to pull off a form of magic. These architects, the jury and the trial system, actually create a truth. This truth is intended to be free of external influences. Remarkably, this is a system built on an idea that if almost any dispute in our society is run through the judicial machinery known as trial, out the other end will pop a manufactured truth. Though, with the advent of today\u27s technological landscape and the ease with which jurors obtain media, that machine has developed its fair share of kinks. What makes the truth created by this judicial machine credible to a wider public has much to do with the control of the trial system\u27s seemingly delicate information space. The shifting communication environment threatens this view of the jury trial and the exponential speed with which the environment is shifting presents a problem that must be addressed now with radical new ideas
United States v. Jones: Does Katz Still Have Nine Lives
No full textThis article explores the Court\u27s recent retreat from the two-part Katz test, and an unexpected shift in the considerations the Court declared it will primarily rely upon when evaluating whether a Fourth Amendment search has occurred. Part I recounts the Court\u27s early evolutionary Fourth Amendment cases, leading to the establishment in Katz of the reasonable expectation of privacy test by which a Fourth Amendment violation has since been measured. Part II explores significant cases involving electronic surveillance--GPS in particular, but also electronic eavesdropping through wiretapping and other then-evolving technologies. Part III analyzes the Court\u27s decision in United States v. Jones, the newly-minted test proposed by Justice Scalia in the majority opinion, and its potential impact on the test first formulated in Katz
What States Should Do to Provide a Meaningful Opportunity for Review and Release: Recognize Human Worth and Potential
No full textThis article begins with a detailed analysis of the Court\u27s mandate in Graham, followed by a review of the science that influenced the Court\u27s decision and an analysis of what states have done so far to comply with the mandate. Then, the article explores existing parole rules, followed by a discussion on the challenges minors face in proving their ability to rehabilitate despite the prison system\u27s complicity in preventing such development. Based on the foregoing discussion and analysis, the authors propose a model statute that states should consider adopting for purposes of implementing the mandates in the Graham opinion
Gmail.Gov: When Politics Gets Personal, Does the Public Have a Right to Know?
No full textThis paper examines whether e-mail regarding official government business sent on personal accounts is subject to disclosure under the Freedom of Information Act (“FOIA”). As always, The Federalist Society takes no position on particular legal or public policy initiatives
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 7 (2012)
Guilt, Greed, and Furniture: Using Mel Brooks\u27s The Twelve Chairs to Teach Dying Declarations
No full textNothing beats a good story. We understand our own lives through story. Whether relating the story of our day to friends or family, or reflecting on a lifetime spanning many years, humans use stories to help understand and make sense of our experiences of living in the world. In the legal arena, the best accepted theory explaining how jurors decide a case is the Story Model, which identifies story construction as the cognitive process central to juror decision making. And of course, we know that good lawyers have to be good storytellers (words are our tools, and our craft involves becoming master wordsmiths). What’s true in life, and in law, is also true in learning. Learning the law through the case method involves what James Boyd White describes as an “imaginative reconstruction of the process by which the text was made,” a process of reading a story and imagining oneself participating in its telling and re-telling.4 The process of teaching and learning statutory law (such as the Federal Rules of Evidence) in particular requires the use of stories. A skeletal outline of a hearsay exception only acquires meaning in the context of a story.
When I teach the dying declarations hearsay exception in my Evidence course, I always show the opening scene from Mel Brooks’ darkly comedic film, The Twelve Chairs. A film clip is a particularly dense piece of storytelling, in that it presents story information in a visually and aurally rich manner (including such varied aspects as images, colors, tone, soundtracks, special effects, edits, montage, etc.). Yet, we are able to take in and process a whole series of nuanced and complex messages in a film clip in a relatively efficient manner. Simply put, we are good at “reading” visual stories from television and film. Further, showing the excerpt from The Twelve Chairs not only is fun, it’s good learning pedagogy. This short scene enhances class discussion in three principal ways. First, the scene serves as an engaging mini-review of the elements of the hearsay exception for dying declarations. Second, it serves as a springboard for the class to think critically and articulate some unspoken assumptions underpinning the rationale for the rule (the short scene raises issues about our assumptions governing family dynamics, gender, class, politics, and religion, among other matters) and consider the possibility of drafting a different (and perhaps better) rule. Third, the nature of the example (a film clip, and a comedic one at that), surprises and delights the students who are used to the usually bleak and violent fact patterns in many evidence casebooks. Thus, their attention level is high and they are very engaged in the analysis. A more full discussion of each of these three aspects follows