STU Scholarly Works (St. Thomas University)
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Mandatory Arbitration as an Employer\u27s Contractual Prerogative: The Efficiency Challenge to Equal Employment Opportunity
No full textThe Supreme Court’s classification of mandatory employee arbitration policies as contracts has severely impeded the vindication of employee antidiscrimination rights in derogation of the statutory scheme. The Court has in effect decided that rights expressly granted to employees do not operate as a restraint on employers\u27 contractual liberty if employees can vindicate those rights in arbitration using alternative processes. After reviewing the historical conditions that led to the enactment of various antidiscrimination statutes, the article weighs a history of employer abuses against potential social conditions supporting enforcement (e.g., deters fraudulent suits). The article concludes that these agreements should only be enforced when they are voluntary, bargained-for, and supported by consideration to the employee
The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges
No full textThe novel international legal regime of the rights and status of indigenous peoples has emerged in direct response to the concerted efforts and demands of indigenous communities regarding the survival and the flourishing of their distinct cultures. Its high point, as of yet, has been the 2007 UN Declaration on the Rights of Indigenous Peoples, now enjoying virtually universal support. This article locates the regime of the Declaration within post-World War II value-oriented international law; it highlights its novel, essentially communal rights to culture, self-determination, and land; and it assesses its content within existing sources of international law. It ends with an appraisal of the progress made, and an evaluation of the challenges ahead
Recognizing Rape as Torture: The Evolution of Women\u27s Rights Legal Protective Techniques
No full textWhen thinking about torture, the image coming to mind is that of a detainee held by state authorities for purposes of information extraction. The newspapers\u27 photo images of Abu Graib detainees and sharp-teeth dogs are inevitably recalled. The present article examines a different angle with regard to the legal conceptualization of torture as a violation of international human rights law. The 2008 Report by the United Nations (UN) Special Rapporteur on Torture Manfred Nowak opened a door by linking torture to sexual and domestic violence and women\u27s rights, creating a potential future impact with results that remain to be seen. This article examines the evolution of law with regard to recognizing rape as torture. The analysis underlines the main conceptual issues and legal implications arising out of the legal characterization of rape as torture. It further suggests potential directions for the evolution of women\u27s rights protective techniques
Front Matter
No full textFront Matter includes Table of Contents for St. Thomas Law Review Volume 23, Issue 4, Summer 2011
The U.S. Supreme Court Gets It Right in Arizona v. Gant: Justifications for Rules Protect Constitutional Rights
No full textThe purpose of this article is to demonstrate how the justifications or rationales for legal principles form the basis for compliance with the Fourth Amendment of the United States Constitution; and that therefore, failure to comply with those justifications leads to unconstitutional searches and seizures. Strict compliance with the underlying justifications prevents the courts from circumventing the Constitution by establishing a rule, then expanding it beyond its intended purpose. This article demonstrates and reiterates that compliance with the underlying justifications for establishing rules is essential to protecting individual constitutional rights. In addressing these issues, Part I of this article gives an overview of Arizona v. Gant, setting forth the facts of the case and the issues presented before the Court relative to the search incident to a lawful arrest exception to the warrant requirement. Part II examines the underlying justifications for developing the scope of the search incident to a lawful arrest exception to the warrant requirement in general, and as it relates to vehicles. Part III discusses theories offered to support expansion of the rule to include automatic searches of vehicles even when the original underlying justifications are not present and finds that the theories do not support expansion of the rule. Part IV gives an application of the law as defined in Gant to its facts to conclude that the decision is consistent with precedent interpreting the applicable law. Part V discusses the trend of the Court to revert back to the original justifications of rules with specific emphasis on Hudson v. Michigan. It further discusses justifications of other rules articulated by the Court in developing exceptions to the warrant requirement and shows how compliance with those justifications is essential to the constitutionality of the search or seizure and to ultimately protecting individual constitutional rights
Front Matter
No full textFront Matter includes Table of Contents for St. Thomas Law Review Volume 23, Issue 3, 2011
Welcoming Remarks
No full textDean Douglas Ray\u27s welcoming remarks for Bush v. Gore: A Decade Later , a Symposium hosted by the St. Thomas Law Review
The View from the Administrators
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
The View from Academia
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
Calibrating Chevron for Preemption
No full textNow almost three decades since its seminal Chevron decision, the Supreme Court has yet to articulate how that case’s doctrine of deference to agency statutory interpretations relates to one of the most compelling federalism issues of our time: regulatory preemption of state law. Should courts defer to preemptive agency interpretations under Chevron, or do preemption’s federalism implications demand a less deferential approach? Commentators have provided no shortage of possible solutions, but thus far the Court has resisted all of them. This Article makes two contributions to the debate. First, through a detailed analysis of the Court’s recent agency-preemption decisions, I trace its hesitancy to adopt any of the various proposed rules to its high regard for congressional intent where areas of traditional state sovereignty are at risk. Recognizing that congressional intent to delegate preemptive authority varies from case to case, the Court has hesitated to adopt an across-the-board rule. Any such rule would constrain the Court and risk mismatch with congressional intent - a risk it accepts under Chevron generally but which it finds particularly troublesome in the delicate area of federal preemption. Second, building on this previously underappreciated factor in the Court’s analysis, I suggest a novel solution of variable deference that avoids the inflexibility inherent in an across-the-board rule while providing greater predictability than the Court’s current haphazard approach. The proposed rule would grant full Chevron-style deference in those cases where congressional delegative intent is most likely - where Congress has expressly preempted some state law and the agency interpretation merely resolves preemptive scope - while withholding deference in those cases where Congress has remained completely silent as to preemption and delegative intent is least likely. This rule packages the Court’s core concerns into a text-based, bright-line rule that tracks congressional intent more closely than do any competing proposals, without sacrificing administrability