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Statement by the Honorable Ilean Ros-Lehtinen The Fourth P: Combating Trafficking in Persons through Public-Private Partnerships
No full textStatement by the Honorable Ilean Ros-Lehtinen, entitled The Fourth P: Combating Trafficking in Persons through Public-Private Partnerships
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 23, Issue 1, Fall 2010
Changes in the Wind: How Increased Detention Rates, New Medical Care Standards, and Ice Policy Shifts Alter the Debate on Immigrant Detainee Healthcare
No full textThis paper provides an analysis of the recent changes in immigration detainee healthcare and argues that ICE is taking significant and proactive steps to address the systemic failures of the prior regime. Briefly discussed at the conclusion of this paper is ICE\u27s significant August 6, 2009 announcement that it is enacting additional major reforms to the immigration detention system. This critical development lends credence to this paper\u27s argument that ICE is developing a workable framework for providing appropriate healthcare to immigrant detainees. However, as the announcement came after this paper had been written, a detailed discussion of how those changes support the ideas espoused herein must await another day. Section II of this paper will therefore discuss the increase in the numbers of immigrant detainees, explain the three primary reasons for this increase, and examine all three in the context of Operation Community Shield. Section III will comment upon how the increased detention rates have led to heavy reliance on state, local, and private prison facilities. In Section IV, the paper will analyze the substance of the 2000 and 2008 National Detention Standards. The discussion of adherence to the standards will be provided in Section V, which will include consideration of immigration allegations of failures, ICE\u27s responses to those allegations, and case studies demonstrating that ICE has alternately acknowledged and disputed the allegations. Section VI will argue that both adherence and monitoring are now possible and will recommend a full embrace of both the letter and the spirit of the 2008 Standards. It will also provide a short discussion of how ICE\u27s August 9, 2009 announcement substantiates the claims made in this paper. Finally, Section VII will conclude
Legal Fictions and Juristic Truth
No full textThis Essay reviews the three categories of new fictions outlined above, which I refer to as (1) empirical legal errors; (2) discredited legal regimes; and (3) complex statutory schemes. With respect to each category, I conclude that the appellation of legal fiction is a misnomer and that the integrity of Fuller\u27s classic definition should be retained for its analytic force. The conundrum presented by the legal fiction is that it retains its utility despite its falsity, similar to false statements used in science and mathematics in order to advance a proof or hypothesis. The new legal fictions, however, are different in kind from those described by Fuller because they are neither transparently false nor demonstrably false. As a result, the new legal fiction scholarship does not add to the existing work on fictions, but rather changes the conversation entirely. In addition, I note that the new fictions are often unveiled without an explicit discussion of the standard used to determine their falsity. Certain legal rules, such as those governing eye witness testimony, explicitly incorporate statements of fact that are readily verifiable by reference to real world events. This is not the case when dealing with legal regimes such as slavery or the doctrine of discovery because these legal rules do not reflect or mimic life events; rather they help shape and define complex social relationships and hierarchies. Instead of demonstrable statements of facts, these regimes encompass abstract concepts, such as liberty, autonomy, and sovereignty that are not provable in any conventional sense of the term. Thus, the reliability of eye witness testimony is subject to external verification, whereas the legal regime of slavery and the doctrine of discovery stand as juristic truths quite independent from questions of empirical proof. Finally, I contend that the term legal fiction carries a dismissive connotation that not only denies the inherently constitutive power of the law, but ignores the reality of the system of sanctions established under various regulatory schemes. It also acts as a disservice to those who have labored under the discredited legal regimes that have been recently labeled as legal fictions. The notion of a legal fiction requires a present agreement to temporarily suspend belief and to proceed notwithstanding the acknowledged falsity of the statement. With the clarity of hindsight, there can be no doubt that slavery, and later Jim Crow, were deadly conceits of a different age that exacted untold pain and suffering on persons of color who were conveniently viewed as Other. The fact that these regimes are now discredited, however, does not mean that they can be dismissed as mere legal fictions. They were violent legal regimes that spanned centuries. Fuller cautioned that a legal fiction becomes dangerous when it is believed for then the fiction can approximate a lie. I would add that a fiction can also become dangerous when the force of its constitutive power is ignored. When this occurs, the label of fiction works a denial and removes from memory important lessons regarding the law and the fragility of the human experience. In Part II, I provide a brief overview of legal fictions and discuss the prevalence of both common law and statutory legal fictions, with a particular emphasis on the law school curriculum. Part III then establishes that the three categories of new legal fictions (i.e., empirical legal errors, discredited legal regimes, and complex statutory schemes) are different in kind from the classic fictions and, therefore, warrant separate treatment. In each case, the newly labeled fictions are either not transparently false or not demonstrably false. With respect to empirical errors, I argue that legal rules valued for their veracity, such as the reliability of eyewitness testimony, are not appropriately termed legal fictions despite the fact that they might rest on false premises. A classic legal fiction maintains its utility despite its falsity, but an empirically based rule that rests on a factual error should be modified or discarded. I then turn to the disturbing trend in scholarship to dismiss discredited legal regimes, such as slavery and the doctrine of discovery, as legal fictions. I distinguish these examples from the empirical errors discussed in the preceding section. Specifically, I address the argument that some of the racist assertions made in judicial opinions were known to be false. I maintain that, even if they were understood to be false, they were propounded with the intent to deceive and, therefore, do not qualify as legal fictions. In the last section, I consider the constitutive power of law in the less emotionally charged atmosphere of a complex statutory scheme. I maintain that even though statutory schemes may be artificial constructions, they cannot be said to be false in any meaningful way. A brief conclusion restates my rationale for advocating a relatively narrow definition of legal fictions and offers some final observations regarding the nature of juristic truth
Facilitating Stakeholder-Interest Maximization: Accommodating Beneficial Corporations in the Model Business Corporation Act
No full textThis Article seeks to add to the literature by examining scenarios in which a separate B Corporation corporate form would provide a solution to the problems detailed above, and by proposing that the ABA enact a Beneficial Corporation provision in its Model Business Corporation Act to specifically address this issue. The MBCA has been adopted either in whole, or in substantial part, by over thirty states. As such, amending the MBCA to reflect a new B Corporation form would promote wide acceptance in many states\u27 corporate laws. States, such as Vermont, Minnesota, and California, have already passed or are working on drafting amendments to their corporate laws that would provide for this type of new corporate form to straddle the for-profit and nonprofit sectors. The Article proceeds as follows: Part II provides a background on how beneficial corporations are being structured currently, including different forms proposed by national and state governments to allow for-profit companies to pursue public, social, or environmental agendas. Part III details scenarios in which beneficial corporation directors are likely to run into conflict between the corporate charter mandates, fiduciary duties to shareholders, and their own self-interest. Part IV provides recommendations for provisions the ABA should enact in the Model Business Corporation Act ( MBCA ) and discusses how these proposals potentially resolve the conflicts detailed in Part III
Front Matter
No full textFront Matter includes the Table of Contents for St. Thomas Law Review Volume 22, Issue 3, Spring 2010
Exploring Animal Rights as an Imperative for Human Welfare
No full textThis Article explores why these two seemingly persuasive arguments in support of animal rights have not produced dramatic changes in the legal rules regarding exploitation of animals as a source of food, clothing, research, entertainment, and income, among other things. It shows that these claims reflect a highbrow approach that is detached from the realities of societal ordering, and cultural reality in the United States and around the world. In Part II of this Article, I describe the historical and continuing subjugation of animals by humans and the evolution of legal protection to curb or end such abuse. This Part notes that animal rights activists vary both in philosophy and strategy, and describes the theories and practices intended to effect legal change.Part III looks at the abolition of black slavery as a legal anchor for animal rights. Specifically, it explores the claim that the assignment of property status to animals is the ultimate barrier to proper treatment and an end to human exploitation. This Part notes the strong similarities between black slavery and ongoing animal exploitation and the many similarities between animal-rights and civil-rights activism. This Part also shows that despite the strong similarities, consensus to change the property classification does not seem imminent. It concludes by suggesting that the emphasis on the property label is misplaced. And using the evolution of the law of employment discrimination as an example, it shows that animal exploitation will likely continue even with the elimination of the property label.Part TV evaluates the claim that animal abuse and human abuse are linked. This Part looks at the sources of this claim and their many limitations and contradictions. Specifically, the predictive value of studies and anecdotal evidence linking animal cruelty to interpersonal violence is considered. Further, it considers the indictment that animal rights advocates are themselves cruelbecause of their indifference to human suffering, demonstrated for example, by their support for abortion rights. It also looks at other examples of insensitivity to human suffering by individuals who exhibit strong affection for animals and shows the obstacle this presents for animal activism.The last Part of this Article addresses animal exploitation as a universal cultural norm that academic theories are incapable of greatly influencing.This Article explores why these two seemingly persuasive arguments in support of animal rights have not produced dramatic changes in the legal rules regarding exploitation of animals as a source of food, clothing, research, entertainment, and income, among other things. It shows that these claims reflect a highbrow approach that is detached from the realities of societal ordering, and cultural reality in the United States and around the world. In Part II of this Article, I describe the historical and continuing subjugation of animals by humans and the evolution of legal protection to curb or end such abuse. This Part notes that animal rights activists vary both in philosophy and strategy, and describes the theories and practices intended to effect legal change.Part III looks at the abolition of black slavery as a legal anchor for animal rights. Specifically, it explores the claim that the assignment of property status to animals is the ultimate barrier to proper treatment and an end to human exploitation. This Part notes the strong similarities between black slavery and ongoing animal exploitation and the many similarities between animal-rights and civil-rights activism. This Part also shows that despite the strong similarities, consensus to change the property classification does not seem imminent. It concludes by suggesting that the emphasis on the property label is misplaced. And using the evolution of the law of employment discrimination as an example, it shows that animal exploitation will likely continue even with the elimination of the property label.Part TV evaluates the claim that animal abuse and human abuse are linked. This Part looks at the sources of this claim and their many limitations and contradictions. Specifically, the predictive value of studies and anecdotal evidence linking animal cruelty to interpersonal violence is considered. Further, it considers the indictment that animal rights advocates are themselves cruelbecause of their indifference to human suffering, demonstrated for example, by their support for abortion rights. It also looks at other examples of insensitivity to human suffering by individuals who exhibit strong affection for animals and shows the obstacle this presents for animal activism.The last Part of this Article addresses animal exploitation as a universal cultural norm that academic theories are incapable of greatly influencing
Eminent Domain Wolves in Sheep’s Clothing: Private Benefit Masquerading as a Classic Public Use
No full textA gaping hole remains unaddressed in the midst of the debate on eminent domain. It is barely mentioned in the reform movement that was energized by Kelo v. City of New London.1 It is understandable that the reform movement focused on private to private transfers, because that was the potential form of abuse that was at issue in Kelo. However, this approach left open the possibility that those intent on reaping private benefit from eminent domain could do so by structuring transactions using public ownership. This strategic maneuver has the potential of circumventing even some of the strongest reform legislation. While this structure may not enable every Kelo-type taking, it works often enough that it must be recognized and addressed. It is an area ripe for abuse, but is more difficult to detect than the private to private transfer in Kelo. These covert private to private transfers should be of as much concern because they cause the same harm. Like the infamous result in Kelo, the major beneficiary of the taking is a private party. Often the private party initiates the activity that results in the taking. This Article reveals the extent and seriousness of this additional form of abuse and seeks to encourage its inclusion within the eminent domain reform movement so that effective means of addressing it can be developed
Introductory Remarks
No full textIntroductory remarks by Roza Pati, Professor of Law & Executive Director of LL.M. / J.S.D. Program in Intercultural Human Rights for the Intercultural Human Rights Law Review Annual Symposium
Front Matter
No full textFront Matter includes the Table of Contents for St. Thomas Law Review Volume 22, Issue 2, Winter 2010