STU Scholarly Works (St. Thomas University)
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The Complications of Fla. Stat. Section 222.25(4). Does Florida\u27s Wildcard Exemption Allow Married Debtors to Double Dip
No full textBankruptcy courts in every Florida district have addressed how the new wildcard exemption fits into the Florida exemption scheme. Part II of this paper outlines the relevant cases and explains the reasoning behind their differences. While not all of the cases directly address whether a married debtor exempting real property under tenancy by the entirety can also claim the additional 4,000 wildcard exemption. Specifically, the determination of whether constitutional homestead is self-executing helps determine what steps debtors must take, if any, in order to receive a benefit without affirmatively claiming it. This section also examines the two opposing arguments regarding the timeframe during which courts assess the debtor\u27s relationship with the property for purposes of the wildcard exemption. It explains that the rigid approach of not allowing debtors to modify their exemptions for section 222.25(4) purposes leads to negative consequences, and is contrary to bankruptcy policy. Finally, Part IV uses the analysis from the previous section to examine the diverging opinions regarding debtors\u27 ability to exempt their homes as tenancy by the entireties and claim the wildcard exemption. This section also explores the history and policy behind tenancy by the entireties law as well as the legislative history behind Florida\u27s wildcard exemption. The paper concludes that a married debtor who exempts real property under tenancy by the entireties law receives the benefit of Florida\u27s constitutional homestead exemption and, therefore, may not claim the additional $4,000 personal property exemption under section 222.25(4).2
What\u27s Love Got to Do With It: Contemporary Lessons on Lawyerly Advocacy from the Preacher Martin Luther King, Jr.
No full textLawyers have long been inspired by the advocacy work of Martin Luther King, Jr. From his work on the Montgomery bus boycott, to lunch counter sit-ins, to his March on Washington, Dr. King demonstrated skilled advocacy that resulted in important legal advancements. While lawyers give primacy to Dr. King as an advocate, Dr. King gave primacy to his work as a preacher. This article challenges the legal profession to consider the ways in which Dr. King, the preacher, may be as inspirational and instructive as Dr. King, the civil rights icon. Just as Dr. King\u27s religious values were not abstracted from their context, but rather gave life to a seemingly intractable contemporary problem of values clashing with law, so too can lawyers deploy contextualized religious values consistent with their professional obligations and roles. The article explores Dr. King\u27s essential concept, love in action, which he derived from his own Christian faith, and considers its corollaries in two other faith traditions, Judaism and Buddhism. The article then applies love in action in two typical lawyering situations - an initial client meeting and a settlement offer, and concludes that the preacher-like call of Dr. King for love in action can inspire lawyers as powerfully and appropriately as the calls to action of the advocate Dr. King
The Washington Supreme Court and the State Constitution: A 2010 Assessment
No full textThis article is an effort to focus more careful attention on the way in which the Washington Supreme Court interprets the Washington State Constitution. In particular, it is an examination of the court\u27s record in three specific areas in which it must pay particular attention to the state constitution and the limits it imposes upon state and local government. These three areas are property rights (particularly in relation to the power of eminent domain), the Washington Constitution\u27s privileges or immunities clause, and individual liberties. As will be discussed in the sections below, while in some cases the court has treated the state constitution as merely redundant of parallel federal constitutional provisions, in other cases the court has given separate meaning to state constitutional provisions and developed unique state constitutional jurisprudence through its decisions. Nonetheless, even in those cases the Washington Supreme Court has sometimes shown a willingness to rely upon federal constitutional standards to inform its own interpretation of the state constitution. In examining the court\u27s jurisprudence in the three areas mentioned above, this paper will address the extent to which the Washington Supreme Court has applied precedent, the text and original meaning of the Washington Constitution, and provisions of the Federal Constitution
Re-Enchanting the World: Indigenous Peoples\u27 Rights as Essential Parts of a Holistic Human Rights Regime
No full textIndigenous peoples have maintained key features of their identity against many challenges over time. Under the banner-cry of cultural diversity, the modem community of states has recognized their rights to their culture, their self-determination, and their land. These novel communal rights are necessary elements of a legal regime that responds fully to human needs and aspirations
The United States and the U.N. Human Rights Council: An Early Assessment
No full textThe United States\u27 election to the U.N. Human Rights Council ( Council ) in 2009 displays a shift in foreign policy under President Barack Obama. The Obama administration\u27s decision to engage with the Council by seeking membership, for the first time since the Council\u27s creation, reverses the approach taken under George W. Bush. During General Assembly discussions aimed at establishing the Council in 2005- 06, the Bush administration had objected to key provisions. The United States argued that the proposed Council would fail to overcome the shortcomings of the Commission on Human Rights ( CHR ), the Council\u27s predecessor. When the Council was established in 2006,4 the United States did not stand for election to one of the body\u27s 47 seats. It instead opted for permanent observer status, which entitles a state to participate in all sessions. In 2008, the Unites States withdrew its mission, disenchanted by the tone and progress of Council proceedings. Despite widespread hope that the Obama administration will revitalize America\u27s relationship with the U.N., the 2008 withdrawal is no aberration. It remains a pivotal action in U.S. policy towards the U.N., as Bush era policies have not been altogether abandoned. In this article, an analysis of events leading up to the 2008 withdrawal will shed light not only upon America\u27s likely positions in the years to come, but, more importantly, on the overall performance of the Council since its creation. Two broad factors are relevant to the United States\u27 withdrawal. First, I shall examine America\u27s historical stance towards the Council, tracing its positions before, during, and after the General Assembly vote on the Council\u27s establishment. Second, I shall turn to the Council\u27s scrutiny of human rights in the United States and the American response. Although recent U.S. policy has done much to inflame international relations, I shall argue that the Council\u27s Special Procedures mandate holders drew excessive attention to the United States, often to the neglect of far more serious human rights situations elsewhere in the world. After examining those two factors, I shall conclude with preliminary prognoses of America\u27s new membership under the Obama administration
What are the Policy Implications of Use of Epidemiological Evidence in Mass Torts and Public Health Litigation
No full textThe distinctions between the standards of proof employed in epidemiology and in law inform the central thesis of this paper. This analysis began by describing the role of epidemiology in mass torts and public health litigation. It later argues that because mass torts cover such a wide area, there are several problems related to epidemiology in litigation, particularly scientific uncertainty and inconsistent factual claims. Part II discusses recent cases where epidemiological evidence was raised and debated, distinguishing between vaccine-related and non-vaccine-related cases. Courts have differentiated vaccine-related cases from non-vaccine-related cases, principally because Congress enacted a vaccine act designed to compensate victims. In both vaccine and nonvaccine related cases, the legal concepts of specific and general causation are extensively used. Part III examines the two legal concepts of general and specific causation in epidemiology and how courts have tried to balance the epidemiological causation standard with general torts principles. Part IV analyzes how epidemiological evidence differs from other evidence in terms of the tensions it raises for the legal system, and argues that despite these tensions, courts still hold that causation must be shown by epidemiological evidence. Part V discusses the policy implications of what gets used in court and argues that reliance on human studies, as the best evidence, may be misplaced since one cannot freely experiment on human beings. This section also considers whether epidemiologists should get involved in policy issues, discussing two divergent schools of thought. The paper concludes by suggesting that although the presence of epidemiological evidence does not necessarily end the inquiry; where the evidence is available, it should be used only if the evidence meets a heightened standard. The heightened standard argued for in this paper is a screening standard for admission that considers not only a doubling of the risk by the exposure, but also jury instructions that clearly inform the jury of the strengths and weaknesses of epidemiological studies. The paper also calls for the American College of Epidemiology and the Council for State and Territorial Epidemiologists ( CSTE ) to develop model guidelines for the use of epidemiological evidence in the courtroom. These guidelines could mirror the public health law bench books developed for some states to refer to during public health emergencies
Private Dispute Resolution and the Future of Institutional Workplace Discrimination
No full textThis Article offers a broad perspective on the sources of judicial hostility and the increasing privatization of employment discrimination disputes. It shows that judicial hostility developed not only because of frivolous lawsuits but also because of employer compliance with the law and the subtlety and secrecy of discrimination itself. Additionally, this Article demonstrates that the ramifications of arbitral privatization have been grossly underestimated. Private dispute resolution is not merely a means to avoid frivolous lawsuits and large jury verdicts
Good Things Come to Those Who Wait - Reconsidering Indeterminate and Indefinite Detention as Tools in U.S. Immigration Policy
No full textThis article will primarily focus on illustrating examples of lengthy detention that surely seem unending to the immigrants involved, if not indefinite as determined by the U.S. Supreme Court. I will address all other aspects of detention more fully than actual indefinite detention. Detention is one of many tools at the disposal of DHS to assure orderly immigration and provide predictable consequences for violators of the United States immigration system. I hope to illustrate the frequently coercive affects of the detention scheme and argue that in some, if not many, contexts detention actually impedes the orderly administration of justice, despite its assumed use to guarantee such orderliness. Finally, I subscribe to the usefulness of the scholarly techniques of the Critical Race Theory movement, particularly the use of storytelling to elucidate a legal problem, so narrative vignettes will appear throughout this article. The subjects of the narratives are undocumented immigrants, immigration violators or criminal immigrants, each classification progressively more onerous to many members of society. The narratives are used to provide a concrete illustration of a concept and each narrative is likely representative of hundreds of similar cases. The cases discussed herein are somewhat sanitized versions of actual facts. It is my hope that in depicting actual circumstances I can give voice to a politically weak constituency and show that the function of law unduly prejudices many immigrants, despite detention appearing facially as a reasonable component of U.S. immigration policy
An Essay on Legal Representation of Non-Citizens in Detention
No full textThe broad expansion of the detention of non-citizens by the federal government has been chronicled by Lenni Benson in her fine contribution to this symposium. The question I will address is one of legal representation for these detained individuals, while they are subject to immigration proceedings. The Supreme Court has noted that this adjudicatory process is civil and not criminal. While these persons may retain counsel, there is no provision for the routine appointment of counsel for those who are unable to afford lawyers. In addition, congressional action and subsequent practice has eliminated the availability of the largest provider of civil legal services to the indigent from assisting this population, Legal Services Corporation (LSC). LSC grantees have been barred from providing representation to most detained non-citizens, and, over a twenty-five year period, the restrictions have tightened
Remarks on U.S. Immigration Detention: Policy and Procedure from a Human Rights Perspective
No full textRemarks by Gracian A. Celaya, Deputy Chief Counsel, Department of Homeland Security