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Rule of Law in Haiti before and after the 2010 Earthquake
No full textWhen discussing the myriad challenges facing Haiti in the wake of the devastating 2010 earthquake, it is difficult to prioritize the needs of a country where basic needs such as shelter and basic medical care compete for long-term needs such as education, good governance, and economic reconstruction and growth. The current immediate and emergent needs of Haiti in the face of its national calamity have been well identified by international aid bodies and national leaders, and there has been a considerable literature on those needs. What is of equal importance in the long run, however, is building a solid foundation for sustained long-term social, political and economic stability and a democracy based on rule of law. This article will argue that rule of law is, in fact, the most critical element in achieving this long-term progress. In some senses, this argument may appear circular in that the definition of rule of law, discussed immediately below, is itself a very broad and inclusive concept, and to some extent incorporates most of the elements of social and political stability for which this article argues rule of law is a prerequisite. Nevertheless, rule of law is the embodiment of the idea that it is insufficient to strive for democracy, social, political or economic stability as isolated and independent goals. For example, many U.S. organizations devoted to assisting the democratic process in other countries, such as the National Democratic Institute International Republican Institute, and various others that receive AID money focus on the logistical process of holding elections as if elections themselves were the goal rather than a deep-rooted and sustainable democracy characterized by rule of law. This article will explore the challenges facing Haiti in building a foundation of rule of law by exploring: (1) the particular challenges Haiti faced prior to the earthquake in establishing rule of law; (2) the particular challenges and opportunities Haiti faces in establishing rule of law subsequent to the earthquake. Before exploring these issues, however, it would be useful to begin with a definition of rule of law
Haitian Immovable Property Law: A Major Obstacle to Earthquake Recovery and Economic Development
No full textThis symposium encompasses human rights issues in Haiti, the poorest country in the Western hemisphere, after its devastating earthquake in January 2010 - its problems with governance, human trafficking, dealing with displaced populations, and rebuilding. This article examines an issue that may cut across all of those topics. It is important to reform, stabilize, and enforce property rights in order to provide a basis for protecting individual rights and economic freedom, and to promote government stability and economic development in Haiti\u27s rebuilding efforts. The right of private ownership of property to be free from unreasonable expropriation and confiscation by rulers was first enunciated in the Magna Carta of 1215 The United Nations (UN) reinforces the issue of property rights and economic development in Article 55 of its Charter as an important international human rights law. In the Preamble of the Universal Declaration of Human Rights adopted by the United Nations General Assembly, December 10, 1948, the UN proclaimed a common standard of achievement for all peoples and all nations. Property rights are contained in Article 17, which states: Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property. The principal purpose of this article is to (1) examine the legal rights to private ownership of property and (2) suggest specific steps to modify existing Haitian law and practices to develop a stable, transparent property regime for Haiti. My underlying premise is that without resolution of the Haitian property issues there is little hope for sustained economic development and growth, and without economic change, there is almost no hope for combating poverty, increasing educational opportunities, or improving health and developing infrastructure. Haiti has many problems that retard and delay economic improvement in addition to property rights, but they are outside the purposes and scope of this article
Parental Autonomy and the Role of the State: Arranged Marriages in India
No full textThe doctrine that has become known as Parental Autonomy refers to a belief that parents have a fundamental right to bring up their offspring and to make all sort of decisions concerning the child, free from government intervention, absent a threat to the health and welfare of the offspring. The government has the right to interfere if public health, welfare, safety, and order are jeopardized by parental decisions. The focus of this paper is the issue of parental autonomy in India in the context of arranged marriages, and the role of the state in limiting parental freedom when children are exploited and abused by their own parents or family. The framework of this article is that which is taught in the New Haven School of Jurisprudence; a heuristic of effective multi-method analysis and development of solutions to pressing problems of society. It is not my intention to indicate that women\u27s lives are the ones solely affected by arranged marriages, but since the majority of victims of abuse perpetuated by this practice are female, the examples and articles presented below address the issue mainly from a female perspective. The first portion of the article touches on the idea of parental autonomy and what constitutes a family in India. It also explains the different types of arranged marriages and provides the social, religious, and cultural aspects of such issue. The second part includes the various parties that either support or oppose arranged marriages and their respective arguments for or against. The third portion of the article refers to the legal aspect of arranged marriages; specifically, past cases and other legal responses, such as domestic laws and international treaties. The focus of the fourth part is possible future occurrences. And finally, the last part sets forth numerous solutions that might solve various issues that arise from arranged marriages
States’ Positive Obligations with Respect to Human Trafficking: The European Court of Human Rights Breaks New Ground in Rantsev v. Cyprus & Russia
No full textThis article analyzes the European Court of Human Rights’ landmark decision in Rantsev v. Cyprus and the consequences it might engender in the field of human trafficking. In this case, the Court expanded its previous definition of slavery - the classic paradigm of the treatment of human beings as items of property law - to also encompass any or all features attached to the right of ownership, situations of absolute control of one person over another induced through force, fear or coercion – the paradigm of human trafficking. It also puts forth a discussion of the past efforts at addressing this problem and develops recommendations based on a holistic human rights-oriented approach to state duties in the field of human trafficking
Saving Haiti\u27s Children from Hell
No full textHaiti\u27s devastating earthquake in January 2010 left thousands of children orphaned and tens of thousands separated from their families. Following the earthquake, foreign militaries, nongovernmental agencies, humanitarian aid workers, missionaries, and volunteers descended en masse on the poorest country in the Western Hemisphere to help the victims, especially children, in the midst of the disaster. Unfortunately, some of those who came to help Haiti\u27s children showed little regard for the domestic and international legal protections in place to protect child victims of disaster. As a result, these individuals, organizations, and governments added additional layers of chaos and alienation to these children\u27s lives. This article explores the international legal protections in place at the time of the earthquake, and the ways in which they were violated in order to save Haiti\u27s children from their families, their religion, their culture and their poverty as much as, if not more than, the earthquake itself
Front Matter
No full textFront Matter includes the Table of Contents for St. Thomas Law Review Volume 23, Issue 2, Spring 2011
Darkness at Noon: Judicial Interpretation May Have Made Things Worse for Benefit Plan Participants under ERISA than Had the Statute Never Been Enacted
No full textCourts have constricted the rights of employee benefit plan participants under ERISA in a number of ways, the most prominent of which are catalogued in Part III below. The cumulative effect of these decisions, however, can only be appreciated by taking them together - by considering the overall position of a plan participant under ERISA, as interpreted, relative to the participant\u27s position had ERISA not been enacted. That task is undertaken in Parts IV and later parts of the article. The review of ERISA case law in this article is intended only as a survey: Much more has been written on the individual issues raised below than is recounted here.14 References are included to provide the interested reader with an embarkation point for further investigation, but the author\u27s immediate objective is to identify these various judicial trends in one place, to convey how cumulatively devastating to employee benefit plan participants they have now proved
With Liberty and Justice for All [Families]: The Modern American Same-Sex Family
No full textEvolutions in societal norms have redefined what it means to be a family in today\u27s society. Due to the widespread shift in those who seek the aid of reproductive technologies, the number of would-be parents has greatly expanded. This great range of parenting possibilities presents novel and complicated issues in terms of legal parentage of children. In an attempt to address these novel issues, the Uniform Parentage Act was adopted in 2000, but has changed little since. Much inconsistency exists among and within the several states in determinations of legal parentage, largely in the area of same-sex couples. Adhering strictly to a definition of parent that does not reflect realities of families as they exist within society has the effect of violating those families who fall outside its scope. Remedies such as adoptions and co-parenting agreements afford nonbiological same-sex parents a remedy at law in some instances, but loopholes still create obstacles. This presents an issue as to the traditional understanding of a parent and calls for a broader interpretation of the term to encompass parents as they exist among non-traditional family units today, so as to afford them and their children proper and predictable protection under the law. In particular, a parent should include the same-sex non-biological parent of a child conceived via reproductive technology. Such a change is consistent with the underlying policies and rationales involved in legal parentage, and can, in effect, serve to further them while ensuring the child is afforded a legally recognized relationship with his or her second parent. This Comment does not propose that all third parties should be afforded the opportunity to co-parent a child, but focuses only on the necessitated, yet limited, expansion of this fundamental right. As the Vermont Supreme Court noted, the term \u27parent\u27 is specific to the context of the family involved. We have seen evolutions of society and of our fundamental rights as its members in the past, but is the time right for another forward leap? Part II of this Comment addresses the effect that assisted reproductive technology has had on same-sex parentage. Part III addresses the Uniform Parentage Act and its failure to adequately address same-sex couples as legal parents, therefore, creating the great inconsistencies among and within the several states. Part IV addresses the fundamental right of a natural parent over his or her child and the possibility for the right\u27s modem evolution. Part V addresses a woman\u27s fundamental right to procreate, the policies underlying parentage laws, and current adoption laws, all of which are demonstrative of the need for an evolved understanding and application of what it means to be a parent in today\u27s society in order to afford same-sex parents adequate legal rights under the same legal presumptions as other parents. Part VI explains how that presumption should be, and in some cases is, extended to same-sex couples, and also proposes the best means by which to do so. Ultimately, patterns of constitutional evolution, growing nationwide acceptance of same-sex adoption, and the policies underlying parentage law are in accord with evolving the legal definition of a parent to encompass same-sex non-biological parents and afford them predictable and consistent constitutional protections
An Empirical Study of Obstacle Preemption in the Supreme Court
No full textThe Supreme Court’s federal preemption decisions are notoriously unpredictable. Traditional left-right voting alignments break down in the face of competing ideological pulls. The breakdown of predictable voting blocs leaves the business interests most affected by federal preemption uncertain of the scope of potential liability to injured third parties and unsure even of whether state or federal law will be applied to future claims. This empirical analysis of the Court’s decisions over the last fifteen years sheds light on the Court’s unique voting alignments in obstacle preemption cases. A surprising anti–obstacle preemption coalition is forming as Justice Thomas gradually positions himself alongside the Court’s liberals to form a five-justice voting bloc opposing obstacle preemption
A Very Streamlined Introduction to Bush v. Gore
No full textBush v. Gore is among the most reviled Supreme Court decisions in recent times. It is also one of the most widely misunderstood. This is partly because of the highly complex series of events that preceded the Court\u27s decision. But it is mostly because the Court\u27s opinion has been insistently mischaracterized by legions of academics and other pundits who simply hate what the Court did. Elsewhere, I have provided detailed analyses of the decision. Here, I will offer a concise explanation of what the Court did and why, and perhaps equally important what it did not do. Interested readers can use the citations in the footnotes to find further elaboration and confirmation of the points summarized in this article