STU Scholarly Works (St. Thomas University)
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The Case Against Tamanaha\u27s Motel 6 Model of Legal Education
No full textThe radical overhaul of legal education espoused in Professor Brian Tamanaha\u27s new, widely read book, Failing Law Schools, would represent a disastrous step backward in legal education. Tamanaha and his supporters argue that the current crisis in legal education-rampant unemployment among debt-laden law graduates and plummeting law-school applications requires a dramatic reduction in law-school tuition by substituting a yearlong apprenticeship for the final year of law study and replacing tenured, full-time legal scholars in the classroom with low-cost, part-time practitioners at non-elite law schools. this Essay examines Tamanaha\u27s model in light of the pedagogical needs of law students, the interests of the clients of fledgling attorneys, and the role law professors have traditionally played in championing legal reform and the rights of the disenfranchised through enlightened scholarship. Who will replace the law professor-protected by tenure, unbound to clients or special interests, and able to reflect on abuses of power from the Archimedean point of the academy-as the critic of injustice? I contend that Tamanaha\u27s argument for apprenticeships disserves clients and is pedagogically unsound. And that Tamanaha\u27s differentiated legal education, with elite, three-year programs training corporate lawyers and less expensive two-year schools for local practitioners, would limit the choices and opportunities of law students from the start
Human Trafficking and Diplomatic Immunity: Immunity No More?
No full textThis article addresses four questions. First, is diplomatic immunity a complete shield to criminal trafficking prosecutions and civil suits against diplomats? Second, how have recent civil case precedents limited the impunity typically enjoyed by full diplomats? Third, how can advocates use these new legal precedents to increase deterrence and costs to diplomatic traffickers? Finally, what tools has Congress provided to assist in efforts to hold diplomats stationed in the United States accountable
Indigenous Self-Determination, Culture and Land: A Reassessment in Light of the 2007 UN Declaration on the Rights of Indigenous Peoples
No full textBook: Indigenous Rights in the Age of the UN Declaration
This examination of the role played by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in advancing indigenous peoples\u27 self-determination comes at a time when the quintessential Eurocentric nature of international law has been significantly challenged by the increasing participation of indigenous peoples on the international legal scene. Even though the language of human rights discourse has historically contributed to delegitimize indigenous peoples\u27 rights to their lands and cultures, this same language is now upheld by indigenous peoples in their ongoing struggles against the assimilation and eradication of their cultures. By demanding that the human rights and freedoms contained in various UN human rights instruments be now extended to indigenous peoples and communities, indigenous peoples are playing a key role in making international law more \u27humanizing\u27 and less subject to State priorities.https://scholarship.stu.edu/faculty_book_chapters/1023/thumbnail.jp
Florida\u27s Disregard of Due Process Rights for Nearly a Decade: Treating Drug Possession as a Strict Liability Crime
No full textThis Article examines the United States Supreme Court\u27s jurisprudence that constitutionally compels an analysis under the Due Process Clause for strict liability crimes, and how the Florida Legislature overstepped its due process limitations when it amended Florida\u27s Drug Abuse Prevention and Control Law in 2002. Part I traces the evolution of mens rea in the criminal justice system. Part II provides a history of Florida\u27s Drug Abuse Prevention and Control Law. Part III discusses the recent constitutional challenges to Florida\u27s Drug Abuse Prevention and Control Law. Part IV explains why the United States Supreme Court cases addressing strict liability crimes compel a constitutional analysis under the Due Process Clause of the Fourteenth Amendment. Part V focuses on how Florida\u27s Drug Abuse Prevention and Control Laws violate the Due Process Clause of the Fourteenth Amendment. Finally, part VI provides both a pragmatic solution for the Florida Legislature to remedy Florida\u27s Drug Abuse Prevention and Control Law and an overwhelming suggestion to the United States Supreme Court to require legislatures to engage in a delineated due process analysis when enacting strict liability crimes
Law and Popular Culture: Text, Notes, and Questions
No full textThis new Second Edition of Law and Popular Culture: Text, Notes, and Questions maintains the most appreciated features of the First Edition published in 2007. Each of the chapters begins with a list of readily available Hollywood films that are relevant to the particular chapter. After an introduction to the study of popular culture and an outline of the goals of the book, the chapters themselves fall into two categories. Half concern the pop culture portrayals of legal institutions and actors ― law schools, the legal profession, clients, witnesses, judges, and juries. The second half concern various areas of law ― Constitutional Law, Criminal Law, Torts, Business Law, Family Law, and International Law. Well over one hundred excerpts from articles by the leading law and popular culture scholars still are included. A majority of these excerpts appeared in the First Edition, but many appear for the first time in this Second Edition. Film remains the most prominent medium.
The Second Edition also adds these exciting new features: An original chapter on Punishment explores the surprisingly large body of pop cultural works related to imprisonment and capital punishment. Law-related imagery and portrayals in such other media as television, inexpensive fiction, children\u27s literature, and the comics receive much greater attention in the text\u27s notes and comments sections than was the case in the First Edition. Emphasis on the reasons, forms, and ramifications of law related popular culture, moving away to some extent from attempts either to point out the legal errors in popular culture or to teach the law using popular culture.https://scholarship.stu.edu/faculty_books/1012/thumbnail.jp
Clarifying State Action Immunity under the Antitrust Laws: FTC v. Phoebe Putney Health System, Inc.
No full textIn Part I of this Article, I set forth the current landscape of the state action doctrine. In Part II, I explain the FTC\u27s and the Eleventh Circuit\u27s applications of the doctrine, highlighting the main points of contention that warrant clarification by the United States Supreme Court. I discuss the Court\u27s interpretive options on certiorari in Part There, I argue the Court should impose a higher standard than the Eleventh Circuit under the first prong of the test, which asks whether a state has clearly articulated a policy of displacing competition. I also explain a conflict between the FTC and Eleventh Circuit under the second prong of the test, which asks whether private parties acting pursuant to a clearly articulated policy are actively supervised by the state. I explain that both incorrectly interpret the implications of a sham transaction, and I resolve the resulting conflict through the lens of federalism principles and consideration of alternative checks on unnecessarily anticompetitive state action. Finally, in Part IV, I present alternative options that can be taken to ensure the state action doctrine does not lead to the joint destruction of federalism and competition
Under the Lens of the Constitution: The NDAA\u27s Detainee Provisions and the Fifth Amendment\u27s Guarantee of Equal Protection
No full textThe crux of this article discusses Congress\u27s passage of the unequal detainee provisions under the NDAA and its equal protection issues under the Fifth Amendment to the Constitution. Part II begins with a discussion on the impetus for congressional passage of the Authorization for Use of Military Force ( AUMF ) and its development under the laws of war. Next, Part III analyzes United States Supreme Court precedent that previously interpreted the scope of presidential power under the AUMF and explores its implications for purposes of understanding the NDAA\u27s detainee provisions. Part IV follows with a discussion on the NDAA\u27s detainee provisions, while Part V addresses the Fifth Amendment equal protection issues surrounding the detainee provisions. Part VI concludes the discussion and proposes heightened judicial scrutiny to assess the enacted detainee provisions within the NDAA
Uncaring Justice: Why Jacque v Uncaring Justice: Why Jacque v. Steenber . Steenberg Homes W g Homes Was Wrongly Decided
No full textOn February 15, 1994, Steenberg Homes ( Steenberg ) delivered a mobile home to a neighbor of Lois and Harvey Jacque.\u27 The Jacques were an elderly retired couple who owned about 170 acres in a town in Wisconsin. Their neighbor had bought the home with delivery included. Steenberg asked the Jacques if it could deliver the home to the neighbor across the Jacques\u27 property but the Jacques repeatedly refused. On the day of delivery, the private road to the neighbor\u27s house was covered in up to seven feet of snow and contained a sharp curve which would require sets of \u27rollers\u27 to be used when maneuvering the home around the curve . So Steenberg decided to plow a path across the Jacques\u27 snow-covered field in order to deliver the home to the neighbor despite the Jacques\u27 refusal to give it permission. The Jacques successfully sued Steenberg for trespass, and the jury awarded them 100,000 to the Jacques in punitive damages and that this award was upheld by the Wisconsin Supreme Court.\u27 The Wisconsin Supreme Court essentially protected the Jacques\u27 right to exclude Steenberg from their property, regardless of the fact that Steenberg was in a difficult position. If the need had been to save a life or the serious loss of property, and there was no other way to save it, Steenberg would have been able to claim necessity and justify its action. But here, where the loss was not life-threatening, the court took an opposite position. It found no justification for Steenberg\u27s action and even condemned it as a serious infraction of the law protecting property. The court did not consider it important that no physical harm had been done to the Jacques\u27 property or that the Jacques had been uncaring in refusing to grant permission for the temporary use of their land. Instead, the court felt that Steenberg\u27s behavior needed a deterrent greater than the judgment of liability and so permitted the jury award of 100,000 punitive damage award. His concept of human flourishing focuses on enabling a person to live freely, and in many of his examples from legal cases, he successfully shows how the law promotes the capabilities of a person to live freely by either derogating from, or protecting, the right to exclude. The problem with his concept of human flourishing is that it stops short of an understanding of what it means to live freely. So while his analysis succeeds for most of his examples, it fails to interpret the Jacque case correctly. The first part of this Article examines Alexander\u27s concept of human flourishing in light of the examples of legal cases that he uses to illustrate his argument. It should become clear in the course of this discussion that Alexander sees human autonomy as an end in itself. While he asks how the law enables a person to live freely, he does not ask what a person should do with this ability to live freely once one has it. But the law is not so shortsighted. It encourages the use of one\u27s freedom to care for one\u27s neighbor. So, following the discussion of Alexander\u27s examples, this Article produces further examples of legal cases to show that the purpose of the law is to care for one\u27s neighbor. In fact, two cases very similar to the Jacque case, in other jurisdictions, do allow a trespass over the property of another who has not given permission for that trespass. These cases derogate from the right to exclude in order to accommodate people in need even though the need is not life-threatening. There is a significant difference between Alexander\u27s concept of human flourishing as living freely and the concept of human flourishing as living freely for a purpose. The former defines the good as the act of choosing and acting in an undirected way; the latter defines the good as the act of choosing and acting in a directed way. The second part of this Article examines how the former concept developed from the time of Grotius until today, when it is captured by the words of United States Supreme Court Justice Anthony Kennedy: At the heart of liberty is the right to define one\u27s own concept of existence, of meaning, of the universe, and of the mystery of human life. Right in this sense does not permit an evaluation of the specific motivations, intentions, objectives, or consequences that are connected to actions that take place within the space of a right. The right stands apart from the purpose for which it is exercised. There is no good or bad in actions as long as they take place within the space of a right. This discussion helps show how Alexander\u27s concept of right is really the space for freedom. It does not envision the function of law as promoting the use of one\u27s freedom to care for one\u27s neighbor. The thesis of this Article is that law must do more than promote the capabilities that enable a person to live freely; it must promote the proper use of those capabilities if one is to achieve true human flourishing. In particular, the law should encourage one to care for one\u27s neighbor. The Jacques turned a cold shoulder to Steenberg\u27s plea for help. In the Parable of the Good Samaritan, the priest and the Levite also turned away when they saw a man beaten by bandits lying on the other side of the road. They refused to take the time and trouble to cross the road to help him out. Yet the Good Samaritan-the good neighbor-was moved by compassion to stop his journey and spend the time, money, and effort to care for the man. Which of these people promoted human flourishing? Christ tells us that it was the Good Samaritan. If the law is to promote human flourishing it should encourage such behavior. The emphasis here is on the word encourage; this Article does not argue that the law should force such behavior. True caring can only result from free choice. Yet this does not mean that the law has no role to play. At the very least, the law should not discourage caring. By awarding the 100,000
Modern-Day Slavery Eclipsing the Sunshine States Compels Safe Harbor Legislation in Florida
No full textThe principal contention of this article is that the Florida Legislature should adopt non-discriminatory safe harbor legislation providing immediate emergency services to all genders, ages, and nationalities of human trafficking victims. Part II of this article discusses the issue within a global framework and how the international community has progressively responded. Part III details the background of human trafficking in the United States and the current federal legislation being utilized to eradicate modern-day slavery. Part IV analyzes the issue at the state level in Florida and its legislative efforts to follow the federal government\u27s lead. Finally, Part V recommends steps the Florida Legislature can take to embrace a victim-centered approach to combating human trafficking through safe harbor legislatio
Waiting for Gaudet Charting a Course after Atlantic Sounding Co. v. Townsend
No full textIn Waiting for Godot, the masterpiece play by Nobel Laureate Samuel Beckett, two friends wait expectantly for someone named Godot to arrive. The friends claim him as an acquaintance, but in fact they hardly know him, admitting that they would not recognize him were they to see him. After days of waiting in vain, they pledge to commit suicide the day after, unless of course Godot arrives. At the play\u27s end, the audience never learns if Godot arrived or if the friends committed suicide. This narrative is strikingly similar to the saga of the homonymous Supreme Court case name Gaudet-a case that may or may not return from the vestiges of admiralty law jurisprudence. This article explores the potential of Gaudet\u27s return; and, in doing so, it provides an up-to-date assessment of the state of the law of maritime personal injury and wrongful death remedies in the light of two co-existing, yet contradicting, Supreme Court precedents: Sea-Land Services, Inc. v. Gaudet and Miles v. Apex Marine Corp. The former case, Gaudet, is the outer limit reached by the Supreme Court in expanding the remedies available in maritime personal injury and wrongful death suits. Miles, conversely, is synonymous with the Supreme Court\u27s limitation, if not outright negation, of those remedies. Strikingly, however, Miles distinguished Gaudet without overruling it, and Gaudet, therefore, has remained in oblivion for a long time, while Miles has enjoyed an amazing expansion far beyond its own limited holding