STU Scholarly Works (St. Thomas University)
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The View from The Bench
No full textThis panel of the symposium was presented on November 13, 2010, at the St. Thomas University School of Law in Miami Gardens, Florida
In Times of Famine, Sweet Potatoes Have No Skin: A Historical Overview and Discussion of Post-Earthquake U.S. Immigration Policy towards the Haitian People
No full textThis article is an examination of the U.S. immigration policy towards Haitians both before and after the January 12, 2010 earthquake. In order to understand the U.S. policy response and the Haitian community\u27s reaction to said policy, it is imperative to first understand the historical framework of the U.S. immigration policy towards Haitians. Fundamentally, the U.S. immigration policy towards Haitians is based on two erroneous premises: (1) Haitians are only economic migrants; and (2) fair immigration treatment of Haitians will lead to a mass migration into the U.S
Florida\u27s Adoption of the Uniform Power of Attorney Act: Is It Sufficient to Protect Florida\u27s Vulnerable Adults
No full textThis article evaluates the effectiveness of the Florida Power of Attorney Act ( Florida\u27s Act ) in providing additional protections for Florida residents executing a power of attorney, while maintaining the principal\u27s autonomy. Part II provides the development and purposes of the UPOAA, which appealed to the drafters of the Florida Act. Part III details the benefits and limitations of the UPOAA and the Florida Act\u27s modifications as related to the agent\u27s duties, authorities, and liabilities. Florida\u27s modifications of the UPOAA, however, require improvement to further protect the principal. Finally, Part IV examines the weaknesses that remain in the durable power of attorney laws and the viability of additional reforms suggested by other authors. The author concludes that the best additional reforms should address educating the principal and agent better, which includes revising the law to add agent requirements to further abuse prevention. Appendix A provides a chart of the UPOAA sections relating to the agent\u27s duties, authorities, and liabilities with the Florida Act\u27s modifications for comparison
Racial Profiling-Separate and Unequal Keeping the Minorities in Line - The Role of Law Enforcement in America
No full textThis article will explore the history of modern policing and examine police brutality at the early stages of the implementation of law enforcements in this country. Also, this article will address whether race, gender, sexual orientation, religion, or ethnicity contributes to higher incidents of police brutality and review common misconceptions by the public about police brutality and retaliation against citizens who report police brutality. This article will define the term qualified immunity and highlight its application towards police officials and district attorneys, while also analyzing highly publicized cases and their dispositions. Lastly, this article will address possible solutions to combating the problem of police brutality, which has plagued American society, leaving victims and many others exposed to this uprising endemic
Vote-Dilution Analysis in Bush v. Gore
No full textAfter the November 7, 2000 presidential election, the electoral college vote hinged on whether Governor George W. Bush or Vice President Albert Gore, Jr. had won Florida. Candidates, officials, and voters battled in Florida and federal courts. This article is about the equal protection, vote-dilution constitutional analysis that would ultimately decide the matter
Education and Pluralism: Towards a Democratic Theory of Education in Europe
No full textOne of the greatest challenges, which modem European states face nowadays, is the rising advance of multiculturalism and diversity within their societies. This situation has broken one of the foundations that inspire the traditional notion of the state: the existence of a culturally homogeneous people. During the last decades, states have implemented different policies directed to achieve the social integration of multiculturalism and, therefore, to guarantee a peaceful coexistence. Nevertheless, how officials of different countries have recently recognized, models of integration adopted hitherto (such as integration contracts) have failed. It is likely, in this context, that an effective social integration of multiculturalism just can be reached through education. How to educate has been the subject of debate and analysis in all the scientific disciplines in which the individual is regarded as the main object of study. Medicine and psychiatry in the realm of the natural sciences, as well as, politics, religion, or law, as social science subjects, have traditionally aimed to educate the individual in order to facilitate his or her successful integration with the political or social reality around him or her.\u27 Aristotelian and Platonic theories from the classical period2 such as the Mirrors for Princes from European medieval literature-especially, De Principiatibus by Nicolo Machiavelli -or the Arcana Imperii from the 16th and 17th centuries are good examples of this. Nevertheless, the use of education as a policy of integration - that appears already in the most classical academic literature- faces nowadays with new challenges, as a consequence of the growing religious and cultural complexity of societies. Demands by students and teachers to be allowed to wear Islamic veils or chadors in the classroom, attempts by students to exempt themselves from classes such as religion or physical education, or their refusal to be educated before a crucifix have recently generated some controversy all over Europe. As a solution to cases such as the ones mentioned above, European constitutional courts, as well as the European Court of Human Rights (Eur. Ct. H. R.), had to raise again the traditional question formulated by classical theories of education - and now applied to a multicultural society: in which values and principles must we educate? But, above all, both courts have pondered what the limits should be for any state to educate its citizens, thus raising the issue of indoctrination in the field of education, a problem that appears mainly in the context of a democratic state. However, as in this essay will be shown, the doctrinal and judicial answers to these conflicts have not always escaped the influence of the so-called liberal theories of education. The solutions contributed by these liberal theories of education may have been useful for the European societies of the 19th century, or even for those in the opening third of the 20th century, as they were relatively homogeneous from a religious, political or cultural perspective. However, and given the plurality of our European societies, we cannot concede their validity nowadays. It is therefore necessary to construct a democratic theory of education in Europe
Florida\u27s Blaine Amendment: Goldilocks and the Separate but Equal Doctrine
No full textAnti-Catholic prejudice that gave rise to so-called Blaine Amendments in myriad state constitutions is widely known. These amendments provide, in essence, that no public revenue may pass directly or indirectly in aid of a sectarian institution. Lesser known is the relationship explored in this article between the Blaine Amendment and racial prejudice. In Florida, the two were patently interrelated. Before ratification of the State\u27s 1885 Constitution, freedmen could receive a quality education at integrated common schools or private religious schools. The separate but equal doctrine foreclosed the first choice and the Blaine Amendment limited the second. Not coincidentally, the private religious schools teaching freedmen at the time were sponsored by carpetbaggers, Protestant abolitionists, and Catholics. Thus, the separate but equal doctrine and the Blaine Amendment together became a juggernaut of racial and religious oppression impacting primarily the African-American community. Today, Florida courts refer to the Blaine Amendment in far more benign terms as a no-aid provision. But this article reveals that the Amendment\u27s framers would not have recognized their clause as such. They were not in favor of strict separation as are most of the Blaine Amendment\u27s supporters today. Rather, they generally favored a Protestant establishment of religion even in the public schools. The test Florida courts have adopted to interpret Article I, Section 3, permits in effect the just-about-right religious to participate in publicly-funded programs, but not the too-religious. Because this is reminiscent of the Goldilocks tale, the article refers to this test as the Goldilocks test for compliance with Article 1, Section 3. Employing the Goldilocks test to interpret Article I, Section 3 not only perpetuates a prejudicially motivated amendment, but also impinges upon state and federal precedent against preferring one religion over another and entangling the state in church law, policies, and regulations. Therefore, the fact that the Blaine Amendment was readopted in the 1968 Constitution and passed on by subsequent constitutional conventions cannot and should not save this interpretation of the clause. It should not save it, because the Amendment as refrained will cause even more public discrimination than as proposed with racial and religious animus. In addition, it would severely undercut state and local government\u27s ability to provide social services to the poor and needy from healthcare and substance abuse treatment to transitional housing and eldercare
Draft Complaint
No full textThe following Draft Complaint has been formatted for the purposes of publication, but retains all content as it was originally drafted on November 9-10, 2000
Principled Legal Pragmatism: Reconciling Posner and Dewey on Law and Democracy
No full textThe pressing practical question is how to cultivate democratic reconstruction? And here again, Posner\u27s insights are both helpful and continuous with the pragmatism of James and Dewey. Both James and Dewey sought reform not primarily through deliberation, but through institutional reform. As Posner insists, [w]e must accept the irreducible plurality of goals and preferences within a morally heterogeneous society such as that of the United States, and proceed from there. And proceeding from there-successfully, not just aspirationally-means discarding idealistic notions of democracy in favor of institutional and social arrangements that support a morally diverse community, the members of which are free (and empowered) to pursue their various forms of preferred living. James and Dewey were perhaps more sanguine about the potential of such reform than is Posner, and here perhaps James and Dewey provide a needed correction to Posner\u27s excessive pessimism
Indigenous Sovereignty, Culture, and International Human Rights Law
No full textoai:scholarship.stu.edu:faculty_articles-1151Indigenous peoples\u27 concept of sovereignty is intimately linked to their culture, their language, and their land. These three essential components of their self-determination have been, and remain, under existential threat. This essay explores how international law has responded to Indigenous peoples\u27 demands for cultural survival, appraising progress made and suggesting further improvements to the international legal regime. In doing so, the essay focuses on the 2007 UN Declaration on the Rights of Indigenous Peoples, overwhelmingly passed by the UN General Assembly, as well as pertinent treaty and customary international law