STU Scholarly Works (St. Thomas University)
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The Dream Act and the Right to Equal Educational Opportunity: An Analysis of U.S. and International Human Rights Frameworks as They Relate to Education Rights
No full textThis article argues that by denying undocumented children access to higher education, the U.S. government is violating their obligations under the Universal Declaration of Human Rights ( UDHR ) and Universal Covenant on Civil and Political Rights ( UCCPR ), as they relate to discrimination of social groups on the basis of national origin. Furthermore, by denying undocumented students access to higher education which is afforded to their American contemporaries, and is provided by the DREAM Act, these undocumented students are being discriminated against participating and contributing in American society and civic life and are being denied the equality of educational opportunity. The right to education, while not recognized as a fundamental right by the U.S. Constitution, is an important driver in American society for creating a less discriminatory and class-based society. For this reason, the U.S. Congress should pass the DREAM Act. This paper will argue that the U.S. has both international and national legal obligations to pass the DREAM Act and further protect undocumented students who qualify under the DREAM Act right to equal access to higher education. Section II of this paper will examine the history of the DREAM Act, the provisions of the DREAM Act of 2011, and the states\u27 individual responses to this issue, with a particular focus on the New York, California, and Alabama bills respectively. Section III of this paper will discuss the U.S. Constitutional framework as it relates to education and undocumented students. Section [V will examine the lack of educational opportunity for undocumented students in the U.S. and how that translates into a lack of meaningful participation in modem American civic society. Section V will discuss the intersection between the U.S. and international human rights frameworks. Section VI will examine general international human rights framework generally, and as related to the rights of children and the Convention on the Rights of the Child ( CRC ). Section VII of this paper will discuss the right to education within the international human rights framework. Section VII of this paper will discuss the obligations that the U.S. has under international human rights law to avoid discrimination
Best Practices for the Law of the Horse: Teaching Cyberlaw and Illuminating Law Through Online Simulations
No full textIn an influential 1996 article entitled Cyberspace and the Law of the Horse, Judge Frank Easterbrook mocked cyberlaw as a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. Responses to Easterbrook, most notably that of Lawrence Lessig in his 1999 article The Law of the Horse: What Cyberlaw Might Teach, have taken a theoretical approach. However, this Article-also appropriating the Law of the Horse monikerconcludes that Easterbrook\u27s challenge is primarily pedagogical, requiring a response keyed to whether cyberlaw ought to be taught in law schools. The Article concludes that despite Easterbrook\u27s concerns, cyberlaw presents a unique opportunity for legal educators to provide capstone learning experiences through role-playing simulations that unfold on the live Internet. In fact, cyberlaw is a subject particularly well-suited to learning through techniques that immerse students in the very technologies and networks that they are studying. In light of recommendations for educational reform contained in the recent studies Best Practices for Legal Education and the Carnegie Report, the Article examines the extent to which Cybersimulations are an ideal way for students to learn-in a holistic and immersive manner-legal doctrine, underlying theory, lawyering skills, and professional values. The Article further explains how the simulations were developed and provides guidance on how they can be created by others. The Article concludes with a direct response to Easterbrook, arguing that cyberlaw can indeed illuminate the entire law
Helping Haiti in the Wake of Disaster: Law Students as First Responders
No full textThis is the story of how we put an immediate-need and longer-term TPS service effort together, the lessons we learned in doing so, and what we believe to be a sustainable clinical pedagogy, and law school service model built around disaster assistance and recovery. We begin by examining how lawyers and law students have traditionally made valuable contributions to disaster response by using their legal training. All too often, those efforts have been hampered by the post-disaster ad hoc nature in which they have been constructed, and by the limitations inherent in the relatively small number of lawyers available to offer significant amounts of time to the overwhelming number of disaster-affected individuals. Recognizing this, many volunteer agencies and legal services providers have sought to improve the response time, quality, and quantity of post-disaster legal assistance by preparing materials and training volunteer lawyers in advance. Our proposal incorporates and builds on these improvements by arguing that law students and law clinics are a veritable army of untapped potential legal resources that could be configured to provide quick legal responses to emergencies and disasters, targeted to enforce disaster victims\u27 basic needs. We encourage the legal community that is already working on emergency and disaster preparedness, relief and recovery to include law school clinics and students in their present efforts; and we encourage law school clinical instructors, and pro bono programs to give serious consideration to incorporating legal first response into their pedagogical and service programs
Hearsay after Crawford: A Practitioner\u27s Guide
No full textThe Sixth Amendment to the U.S. Constitution provides that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. Although it may appear simple, concise and direct, the language of the Sixth Amendment has been the subject of much discussion.\u27 The Confrontation Clause has been inevitably comingled with the hearsay rules, and determining when an out-of-court statement violates the rights of criminal defendants has been no easy task. For many years, it was uncontested, as established in Ohio v. Roberts, that to avoid violating a criminal defendant\u27s Sixth Amendment rights, the Confrontation Clause required a prosecutor who sought to introduce hearsay evidence to establish that the hearsay declarant was unavailable and that the out-of-court statement bore adequate indicia of reliability. Showing the statement fell under one of numerous hearsay exceptions or bore particularized guarantees of trustworthiness established the necessary level of reliability. However, in 2004, the Supreme Court departed from the rule in Roberts. In Crawford v. Washington, the Supreme Court held that compliance with the Sixth Amendment\u27s Confrontation Clause requires more than an adequate indicia of reliability. Pursuant to Crawford, out-of court statements that are testimonial are barred by the Confrontation Clause, unless the declarants are unavailable and the defendant had the prior opportunity to cross-examine the witnesses. o Contrary to Roberts, whether a court deems such statements reliable is irrelevant. Despite this direct ruling, the Crawford holding failed to provide a clear answer to the correlation between out-of-court statements and the rights of criminal defendants. Uncertainty has reigned in courts\u27 interpretation of the meaning of testimonial. A study of the post-Crawford jurisprudence is therefore a must for the practitioner to be able to understand the current connection between hearsay and the Confrontation Clause. This article will focus on the meaning the courts have given to the word testimonial, which has proven to be a complex and determinative factor when operating under the Confrontation Clause. It will also attempt to create a guide for practitioners with the ambitious goal of facilitating the sometimes-arduous task of determining whether a particular piece of evidence is likely to be deemed testimonial and, consequentially, subject to the Confrontation Clause
The View from the Litigants
No full textThis panel of the symposium, Bush v. Gore: A Decade Later , was presented on November 12, 2010, at St. Thomas University School of Law in Miami Gardens, Florida
A Survivor\u27s Story
No full textErinece Saint Jean\u27s (Intercultural Human Rights Program Graduate) personal story shared at the 2011 Intercultural Human Rights Law Review Annual Symposium on the earthquake that struck Haiti on January 12, 2010
A Child Rights-Based Approach to Reconstruction in Haiti
No full textThe January 2010 earthquake in Haiti created a major humanitarian crisis for all of Haiti\u27s population, not least for its children. The devastation resulting from any large scale natural disaster raises numerous children\u27s rights issues. Immediately following the Haiti earthquake, however, public attention focused largely, and selectively, on only certain issues confronting children, most notably the threat of trafficking. Anti-trafficking initiatives are essential, but isolating trafficking as an issue can lead to overlooking the structural issues that heighten children\u27s vulnerability to being trafficked as well as other equally pressing children\u27s rights violations. This article proposes a more holistic rights-based approach to the post-earthquake reconstruction effort in Haiti. The article delineates the range of rights violations children have suffered, explores the interrelationship among these rights, and outlines measures needed to foster the realization of all children\u27s rights and well-being
Front Matter
No full textFront Matter includes the Table of Contents for St. Thomas Law Review Volume 24, Issue 1, Fall 2011
To Secure These Rights: The Supreme Court and Snyder v. Phelps
No full textHistorically, the United States Supreme Court has taken a morally neutral approach towards issues involving freedom of expression. Instead of evaluating the content or substance of the views being expressed, the Court has relied primarily upon formalistic time, place, and manner considerations to guide its judgment in such cases. The rationale, as well as the advantages and disadvantages of this judicial approach are vividly illustrated in Snyder v. Phelps-the Court\u27s March 2011 ruling that patently hateful protests at military funerals are protected by the First Amendment of the Constitution. Matthew Snyder was a heterosexual twenty-year-old, Marine Corps Lance Corporal who died fighting for his country in Al-Qa\u27im, Iraq. Fred Phelps, Sr. is the founder of the Westboro Church, a Baptist congregation in Topeka, Kansas composed mainly of his extended family. The Westboro Church is defined by hatefulness. Included among the targets of its rancor are homosexuals, the United States for tolerating homosexuals, the American military for defending the United States, and anyone or any religion that does not completely share its dogma. It especially loves to hate Catholicism. The church has chosen to publicize its messages by protesting at hundreds of funerals over the past twenty years. On March 10, 2006, Westboro congregants picketed Matthew Snyder\u27s funeral at a Catholic cemetery in Westminster, Maryland, carrying placards that read Thank God for Dead Soldiers, God hates you, and You are going to hell. l After a civil suit was brought by Albert Snyder, Matthew\u27s father, a Federal District Court awarded Snyder millions of dollars in compensatory and punitive damages against Westboro, finding that the church intentionally caused him psychological strain and distress. When the Fourth Circuit Court of Appeals subsequently reversed the judgment, Mr. Snyder appealed to the United States Supreme Court, which, on March 2, 2011, issued its 8-1 ruling. Writing for the majority, Chief Justice John G. Roberts, Jr. affirmed the Circuit Court\u27s decision. Justice Robert\u27s argued that Westboro\u27s protests are clear examples of public speech, which occupy the highest rung of the hierarchy of First Amendment values. While Westboro\u27s messages may fall short of refined social or political commentary, he admitted, the issues they highlight-the political and moral conduct of the United States and its citizens, the fate of our nation, homosexuality in the military, and scandals involving the Catholic clergy are matters of public import
Fear Itself: The Impact of Allegations of Gang Affiliation on Pre-Trial Detention
No full textThis article addresses the impact of alleged gang membership at the initial detention/bail determination for three reasons. First, the right to non-excessive bail is guaranteed by the Eighth Amendment. Second, although the impact of trial testimony about gangs presents a number of issues meriting exploration, the vast majority of criminal cases are either dismissed or resolved by plea. This is particularly so when charges are less serious. When misdemeanors or low-level felonies are charged, the incarceration of the defendant on excessive pre-trial bail will alter negotiation dynamics such that a defendant is likely to plead guilty in order to obtain release. Thus, the imposition of high bail may be the only decision based on gang allegations affecting the majority of defendants. Third, the allegation of gang affiliation is often inaccurate and unrelated to the offense, yet a defendant alleged to have a gang affiliation will often be treated as an extremely violent and dangerous individual. The invocation of gang membership suggests senseless violence, danger to others, and can lead to misguided preventive detention in the form of excessive bail. While there is certainly a very real connection between gangs, delinquency, and violence, any non-law enforcement gang expert (and some law enforcement experts) would distinguish among levels of gang membership. Further, evidence suggests gang databases are so wildly overinclusive that many people in gang databases are not even members of a gang. The databases are simultaneously under-inclusive of non-minority gang members and women, and their use exacerbates the overrepresentation of males of color in the criminal justice system. The reliance on unsupported allegations of association with a gang in determining pre-trial bail conditions may, and often does, overshadow the presumption of innocence. To be sure, the imposition of bail that effectively leads to pre-trial detention is a long-established facet of the criminal justice system. The presumption of innocence and the right to remain free until proven guilty has often been honored more in the breach than in reality. Jails across the country are filled with defendants awaiting trial. A small number of defendants are remanded after specific findings that they pose such a great risk of flight or such a danger to the community that detention, even prior to conviction, is permitted. In these circumstances, the decision to remand without an opportunity to post bail and be released is governed by narrowly defined considerations. In the vast majority of cases, pre-trial detention is secured by bail. Money is the key that can unlock the jail door, but the amount of bail required to secure pre-trial freedom is set, more often than not, beyond the means of the indigent defendant. For those alleged to have gang affiliations, however, higher bail is more likely than for those with similar records, charges and community ties who are not alleged to be in gang databases. While there is substantial literature examining the terms and conditions of pre-trial release and bases for pre-trial bail decisions, the allegations of gang affiliation have not been subjected to such scrutiny. Because the decision to release or detain a defendant is often the most critical moment in the course of a criminal case, this paper fills that gap. This paper proposes that allegations of gang membership be excluded from the release determination in all but a very limited number of cases and that, when such allegations are permitted, procedural safeguards requiring prompt review of the factual basis for allegations of gang affiliation be adopted. Part II of this article examines the nature and scope of the impact of allegations of gang association. In Part III, the critical nature of the pre-trial release decision and the permissible considerations for release determinations are considered in light of the presumption of innocence and the Eighth Amendment\u27s prohibition on excessive bail. Part IV examines the difficulty of defining gangs and identifying gang members, the problems associated with the development and maintenance of gang databases by law enforcement, and their use by prosecutors in making bail requests. Part V sets forth proposals to limit improper use of allegations of gang affiliation