STU Scholarly Works (St. Thomas University)
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A Comparative Approach to Enforced Disappearances in the Inter-American Court of Human Rights and the European Court of Human Rights Jurisprudence
No full textTaking into account the current tremendous caseload before the European Court related to enforced disappearances, this article seeks to make a comparative analysis between the Inter-American Court and the European Court jurisprudence. Part I addresses the various difficulties concerning evidence in disappearance cases. It examines the criteria set up by both courts in terms of admission of evidence and burden of proof, as well as the requisite standard of proof in order to accommodate the difficulties arising in disappearance cases. It underscores the Inter-American Court\u27s willingness to render the standard of evidence more flexible in response to the conundrum faced in disappearance cases while the European Court struggles with former rigid standards that ultimately trigger innovative interpretations of rights. Part II explores the notion of enforced disappearances as defined by the Inter-American Court and ignored by the European Court. It reveals the different methods undertaken by both courts when dealing with disappearance cases and the courts\u27 related effectiveness. Part III enumerates and analyzes the rights violated in disappearance cases in the Inter-American and European systems. It underscores the fundamental differences between the two systems with respect to their normative content and application to the phenomenon of enforced disappearances. Finally, this article proposes to highlight the advantages and shortcomings of both systems and to suggest where a work of comparison of their perspective should be useful in order to identify which one is the most adequate to enhance the full enforcement of human rights in cases of enforced disappearances
Blasphemy in Pre-Criminal Code Canada: Two Sketches
No full textFew people realize that Canada has a law against blasphemy, and even fewer realize that this prohibition extends as far back as the origin of the country. The text of Canada\u27s Criminal Code\u27s ( the Criminal Code ) blasphemous libel provision, which was enacted in 1892, and the five reported cases arising under it, are the most relevant materials for understanding the legal concept of blasphemy as it exists in Canada today. However, these materials reveal little about how irreligious speech was treated by the criminal justice system prior to the advent of the Criminal Code. This article attempts to fill in this gap by analyzing two particular sites of blasphemy prosecutions in Pre-Criminal Code Canada: the New France era in Quebec and early 1800s rural Ontario. It must be noted that reconstructing the law of blasphemy in Canada as it existed several generations ago is a difficult task. The available materials come exclusively from archival holdings, which means it may be impossible to conclusively determine whether those materials are truly representative of the law at the time or simply an artifact of archival indexing practices. Those documents which can be found are often incomplete, containing little more than a single affidavit or indictment, or nearly indecipherable from faded handwriting. Secondary sources covering the religious, political, and social history of these time periods make little or no mention of blasphemy. Finally, historians trying their hand at law, and lawyers trying their hand at history, should be quick to acknowledge their limitations. Any conclusions drawn here will necessarily be tentative and preliminary. Disclaimers aside, such a study is certainly worth the effort. These early cases have something to tell us about what blasphemy meant to early European settlers in what would become Canada: what words were considered blasphemous, what social and economic classes were likely to have been viewed as responsible for blasphemy, and how severely blasphemy would be punished if discovered. Even if the framers of the relevant provision of the Criminal Code borrowed from elsewhere, a history of the legal prohibition of blasphemy in Canada would be incomplete without at least an attempt to integrate the earliest examples that can be found
Executive Activism Not Reciprocated with Judicial Activism: Wyeth v. Levine and Cuomo v. Clearing House Return Preemption to the Legislative Branch
No full textThe Supreme Court has taken a strong stand on the preemption issue, with both liberal and conservative justices agreeing to return preemptive authority to Congress. In short, the Supreme Court has properly refused to reward Executive activism with Judicial activism. This article discusses the theoretical foundation of preemption; the requirement of clear Congressional intent; recent Executive Branch attempts to push preemption vis-d-vis agency regulation; the Supreme Court\u27s refusal to reward Executive activism with Judicial activism in Wyeth v. Levine and Cuomo v. Clearing House Ass\u27n, L.L. C.; and the preemption landscape as it exists in 2009 going forward
From Bristol, to Hollywood, to a Land Far, Far Away: Considering the Immigration Consequences of Statutory Rape
No full textA presidential race shines a spotlight on a teenage pregnancy. A teen idol takes a hiatus from her hit television program as she becomes a teen mother. Tabloids fill with confirmed and unconfirmed romances of young celebrities and their (sometimes only slightly) older paramours. At the height of steroid allegations against major league baseball players, an all-star pitcher faces public allegations over a long-running affair with his country music star girlfriend, possibly dating back to when the singer was a child. The Homeland Security webpage and newspapers nationwide fill with details of enforcement efforts against fugitive sexual violators. Troubling news articles about sex offender recidivism cause commentators to call for even tougher laws and enforcement. Meanwhile the Miami newspaper fills with stories of registered sex offenders forced to sleep under a bridge, since zoning ordinances ban them from residing at nearly every other location in town. In addition to the criminal charges and social stigma, noncitizens with convictions for sexual offenses can be deported in several ways. The most onerous classification is as an aggravated felon, a class that is satisfied by having a conviction that constitutes sexual abuse of a minor. Any such conviction after 1996 mandates deportation, and forecloses any application for relief from deportation. Thus, an immigration judge cannot consider any positive equities of the immigrant or sympathetic factors relating to the conviction prior to ordering removal. On its face, this is a very reasonable scheme, one that protects our nation\u27s children and enumerates clear consequences for sexual offenses. However, a number of factors could lead to the conclusion that by mandating deportation the present system is in fact not accomplishing its stated goals. This paper will address the immigration consequences for violating domestic criminal statutes turning on the age of consent for sexual activity. It will subsequently look at trends in enforcement of these statutes. Next, I will address federal decisions construing the immigration consequences attaching to the state court convictions, arising at the Board of Immigration Appeals and the United States Courts of Appeals. Finally, I hope to address whether there could be an alternate model for adjudicating immigration cases that involve statutory rape; one that could adequately account for cultural cues from the non-citizens\u27 own experiences and possibly identify a point for marking a distinction between predatory child abusers and permissive teenagers and young adults where the only abuse in the sexual relationship is implied by the inability to consent
Looking to the Future
No full textThroughout his career, Michael Reisman emphasized law’s function in shaping the future. In this wide-ranging collection of essays, major thinkers in the international legal field address the goals of the twenty-first century and how international law can address the needs of the world community. The result is a volume of outstanding scholarship that will appeal to all those – lawyers, political scientists, and educated laymen— interested in international law, legal theory, human rights, international investment law and commercial arbitration, boundary issues, law of the sea, and law of armed conflict.https://scholarship.stu.edu/faculty_books/1006/thumbnail.jp
Good Things Come to Those who Wait? Reconsidering Indeterminate and Indefinite Detention as Tools in U.S. Immigration Policy
No full textDetention of deportable immigrants is a major component of the United States\u27 immigration enforcement policy. Our cultural consciousness is rife with examples of detention practice throughout our history and detention is a part of our immigrant tradition. European immigrants passed through Ellis Island quickly unless a reason, usually health-based, was presented to justify detention. This is so pervasive in our national mythology that even the fictional Vito Corleone of The Godfather movies was quarantined at Ellis Island for three months for smallpox infection. As a parallel model, in the early twentieth century the majority of Asian immigrants were processed and potentially detained at Angel Island in San Francisco Bay. In the early 1990s, political instability in Haiti led to a mass exodus of refugees who eventually were housed on the U.S. naval base at Guantanamo, Cuba. In 1993, Chinese migrants from the illfated smuggler\u27s freighter Golden Venture were detained after their ship ran aground offshore of Rockaway Beach, New York. Historically, arriving excludable aliens were not entitled to release on bond, but generally could expect that immigration authorities would generously exercise their parole authority to issue them an identity document and release the immigrants into the United States pending resolution of their immigration applications. In 1996, Congress amended the Immigration and Nationality Act to increase categories of immigrants who would henceforth be subject to mandatory detention, including non-citizens who were either inadmissible to the United States as arriving aliens or returning lawful permanent residents or deportable for security or criminal grounds. From 2001 until 2004, the year in which a coup d\u276tat overthrew Haitian president Jean-Bertrand Aristide for the third time, political conditions in Haiti created another crisis of migration by boat. Haitian refugees (labeled migrants ) interdicted at sea by the U.S. Coast Guard were summarily returned to Haiti. United States immigration authorities instituted a policy that Haitian boat persons who reached the U.S. would not be paroled from detention. Most Haitians applied for asylum and were interviewed by asylum officers (civil servants within the Department of Homeland Security\u27s department of Citizenship and Immigration Services) for a determination if they had a credible fear of asylum that merited full review by an immigration judge. The release rate for Haitians who were found to have a credible fear of persecution dropped from 96% in November 2001 to 6% between December 14, 2001 and March 18, 2002. As arriving aliens ineligible for bond, the Haitians were forced to fight their asylum cases, including any appeals, from within the confines of a detention center. The decreased exercise of parole authority was further reinforced by decisions of the U.S. Courts of Appeal finding that parolees were entitled to the right of adjustment of status. The INA provided for this right, but the implementing regulations, later determined to be ultra vires by the courts, excluded parolees from eligibility. Although the court victories helped gain permanent status for those who were paroled previously, subsequent requests for parole have been largely denied. In addition to mandatory detention while cases are pending, successful applicants for relief under the United Nations Convention Against Torture (CAT) may also be detained indefinitely following their immigration court victories, as a result of prior criminal convictions. CAT is typically either a tool for applicants who face harm that is not on account of\u27 a protected fundamental right or an application of last resort for immigrants with severe criminal violations that are thereby ineligible for any other form of relief from deportation. In the latter instance, the alien\u27s relief\u27 and detention may last as long as the alien\u27s tolerance of detention in the United States outweighs his fear of torture in his home country. Finally, historically the term indefinite detention was reserved for a class of criminal immigrants whose deportation was impossible, typically because of a lack of diplomatic relations with the home country or because of a foreign country\u27s individualized case assessment and denial to accept the deportation of a national of the country. Criminal immigrants ordered deported might languish in a jail or detention center for months or years, since the deportation could not be executed. Litigation and Supreme Court precedent produced a scheme for preventing indefinite detention in most situations, so contemporary cases can use habeas corpus lawsuits to prevent or challenge indefinite detention. This 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
Anatomy of a Sex Trafficking Case
No full textThis article contends that a different conceptual model is needed to describe and analyze contemporary U.S. sex trafficking. The experience of the North Florida sex trafficking victims makes clear that neither the semantics nor the underlying ideologies that have dominated the current debate - especially as regards the role of consent in prostitution - are particularly helpful or illuminating. This article proposes a third model entitled Commercial Sex as a Compromised Choice that seeks to more accurately delineate the role of consent in prostitution and sex trafficking cases. It also proposes that U.S. law incorporate the provision of the UN Protocol on Trafficking that recognizes that trafficking can occur not merely through force, fraud, or coercion, but also through an abuse of power or of a position of vulnerability. Such a change in U.S. law would relieve prosecutors of the inordinately high burden of proof currently required to demonstrate non-consent on the part of a potential trafficking victim. The change would also provide a legal framework that much more accurately depicts the varied circumstances of sex trafficking victims throughout the United States
A Horse of a Different Color: A Study of Color Bias, Anti-Trust, and Restraint of Trade Violations in the Equine Industry
No full textIn 2000, Kay Floyd sued the American Quarter Horse Association ( AQHA ) as a result of a registration rule Floyd alleged discriminated against her economically. She did not challenge the right of AQHA to create registration rules that maintained the integrity of the breed, but she challenged its right to prevent her from registering a horse born to two AQHA-registered parents that fit every registration criterion except one. Floyd challenged AQHA\u27s right to prevent her from registering a second pairing from the same parents because that foal was born through embryo transplant in the same year as a foal born through natural birth. Floyd brought suit under the restraint of trade provisions of the Texas Business & Commerce Code. Those provisions comply with federal statutes against anti-trust and restraint of trade, and comply with the United States Supreme Court rulings concerning those topics. The Texas lower court that heard Floyd\u27s complaint agreed with her allegations and gave AQHA one of its few adverse rulings relating to the way it ran its business. The result was a settlement with Floyd, registration of both her horses, and a change in multiple AQHA registration rules. This article examines Floyd, its long-range effect on AQHA, and the implications of the ruling on other voluntary or non-profit associations, both within and without the animal industry. In particular, this article applies the principles of the Floyd ruling to the American Paint Horse Association
Take Two of These and Sue Me in the Morning: Efficacy of the Learned Intermediary Doctrine in Prescription Drug Failure to Warn Cases
No full textUnder the Learned Intermediary Doctrine - elaborated below and representing the majority approach to manufacturer liability in prescription drug cases - Rex holds no recourse against the pharmaceutical manufacturer of Drug X. While logic would seem to impose a manufacturer duty to the ultimate user, for purposes of tort liability in prescription drug cases it is the physician, not the patient, deemed to be the consumer. Thus, so long as the manufacturer conveys sufficient warning of possible side effects to the prescribing physician Dr. Pharm alone, a learned intermediary, the pharmaceutical manufacturer is absolved from any liability to Rex - the ultimate user of the drug. Representing an exception to ordinary tort doctrines of manufacturer-to- consumer duty, the reasoning and policy behind the Learned Intermediary Doctrine will be explored below. Common exceptions to the doctrine, as well as the role of warnings generally in tort law, will be discussed Shortcomings of the doctrine - causing the public to be put at unnecessary risk - will be related, and novel solutions will be presented for shoring up the flaws, ultimately leading to a doctrine better serving of its intended policy aims, and more protective of the general public. Back to our legally powerless ailing patient Rex, who has suffered an unintended side effect from the medication he was prescribed - should any of the following altered scenarios have an effect on his ability to hold the pharmaceutical manufacturer liable? Whether Rex merely telephoned his doctor to receive the prescription instead of visiting in person? Whether he telephoned his doctor\u27s office but only spoke to a doctor\u27s assistant instead of the doctor? Whether he went inside the pharmacy to pick up his prescription instead of utilizing the drive-thru? Whether, once inside the store, the pharmacist informs Rex of the medication\u27s common possible side effects? Whether the pharmacist does not convey this information? Whether the bottle containing the medication conveys the medication\u27s common possible side effects, or whether along with the medication Rex is provided a thick packet of literature which somewhere inside conveys the medication\u27s common possible side effects? Whether a television or radio commercial advertising the medication commonly aired and such advertisement was seen or heard by Rex? These quandaries will similarly be explored below
Give me your tired, your poor… and your convicted? Teaching “Justice” to Law Students by Defending Criminal Immigrants in Removal Proceedings
No full textWhy do you want to participate in the immigration clinic? I asked the student, the fifth of twelve interviews I was conducting that spring day, as my teaching fellow and I sought to choose the incoming class of eight students for the next academic year. I am just totally committed to human rights, she replied. Her earnestness did not leave any margin of doubt for any of us in the room. The last two years in law school I have been looking forward to this and I am sure I am going to be a professional advocate for human rights once I graduate next year. We talked for a few minutes about her experiences abroad, her familiarity with the asylum application process and her interest in representing victims of persecution. Well, how would you feel if I told you that one of your three clients next year is a non-citizen in danger of being deported because of multiple criminal convictions? I asked. If she was surprised, she did not show it. Her intense, yet upbeat expression did not change. She paused thoughtfully for a moment. Well, everyone has rights. I am sure they do, too. The criminal immigrant question was a regular part of my interviews. Sometimes I asked it a little bit differently, perhaps less directly, so the students would be less likely to know that I was not going to budge from assigning them a criminal immigrant client. We would then likely have some discussion about why I like them to represent this type of case. I always considered this portion of the interview to be a bit of truth in advertising and that it was better for the students to be sure of what type of work they would be committing to if they worked with the clinic (and were rewarded with twelve law school credits) during their final year in school. Our clinic offers a range of services to our clients. Our docket is evenly balanced with asylum applicants, immigrant victims of domestic violence and other crimes, and deportable immigrants with criminal convictions. Before I became director of the clinic, criminal cases were a less significant component of the caseload, which is why I stress the range of cases during the interview. Our law students usually have gained a bit of interview experience by the time they are wrapping up their second years. They also know that we always have a few too many applicants for our Immigration Clinic, so the interviews are part of a somewhat competitive selection process. Like candidates for any job, they are trying to get an offer. They need to earn our invitation, and then they can mull over whether the clinic is a good fit for them and accept or decline their seat. If they decline, I move on to the waiting list. It happens sometimes that the criminal question seems to be a turning point in the interview. Each of the last three years an applicant declined a spot in the clinic. Two of those three I predicted, based largely on their negative reactions to the prospect of having a convicted criminal on their roster of clients.
REFLECTION
For weeks after the interviews, I had recurring thoughts of my interaction with the student who was committed to human rights. The semester ended and with it the cyclical pressure of teaching, supervising, meeting, planning, filing, and advocating. The school year has a life of its own. I have a finite amount of time to pass on a large amount of skills and information and to prepare and supervise the students in their initial forays into litigation. The students have a large caseload, but with the pressure of court deadlines and our high expectations, they are almost always able to close out their cases or meet their expected progress by the end of the year. Entering the summer, I can decompress from the final flurry of activity and stress, discuss teaching points with peers at professional conferences, and prepare for the next go-around with the new students in the clinic.
This year, somehow, felt different to me. I sensed that I needed to better give voice to my reasons for committing my students\u27 limited time and my clinic\u27s limited resources to the representation of criminal immigrants. I do have reasons for this choice. I personally find the cases and clients interesting. The students regularly have very meaningful relationships with the criminal clients, if not initially, then certainly once they fully engage in the cases. I admit that I enjoy the tension of teaching in a setting where students represent innocent victims-of foreign persecution or domestic violence-and also represent perpetrators of wrongdoing. Ultimately, I thought I needed to develop a better answer for my pedagogical choices for developing capable lawyers and consider the goals of the clinic in serving our community. I needed to consider my methodology, goals, and identifiable ulterior motives. I hoped I could see some truth or at least bestow myself with some transparency about why I emphasize the need for students to defend both innocent victims and convicted criminal immigrants.
STRUCTURE
Teaching immigration defense to clinical law students is usually a very fact-intensive experience, and it is easy to get caught up in details, rather than dedicate time to considering our motivations for undertaking the work. The details can be overwhelming: students must understand, appreciate, and comply with various evidentiary requirements that differ depending on the nature of the relief sought. Each academic year brings a new group of students needing to master the legal framework and tackle the evidentiary challenges of their cases. Asylum applicants must meet strict corroboration requirements, and the cases turn on the issue of credibility.\u27 Victims of domestic violence have similar criteria for showing the good faith nature of the abusive marriage. This is interesting and gratifying work, but the legal issues of discretionary standards and asylum eligibility are largely settled, so there is less of an opportunity for clinical students to present novel legal arguments. Advocacy for non-citizens with criminal convictions turns on issues of facts supporting a favorable exercise of discretion by the immigration judge. Standards for properly gauging the potential for discretion have been pronounced in precedent decisions from the Board of Immigration Appeals. I am interested in challenging criminal grounds of deportability and thus widening the scope of clients who are eligible for immigration relief. As a result, the immigration clinic I supervise litigates cases challenging whether the underlying convictions properly support charges in removal proceedings. This paper addresses the experiences of clinical students pursuing these tasks. Students confront unique legal challenges and also unearth ethical dilemmas when participating in the clinic. Playing off the themes of the article Can You Be a Good Person and a Good Prosecutor?, by Professor Abbe Smith, incorporating examples from recent clinical experience, and providing commentary from the Critical Race Theory movement, I address my role as a clinical teacher training advocates whose clients may be socially vulnerable, but whose cases are, on the surface, less attractive than clients in a clinic that only serves refugees and other immigrant clients who are more readily identifiable as victims. I further seek to establish pedagogical and social merits that are distinct to criminal immigration work and reflect on my own assumptions about the importance of teaching this work to students in a clinical setting. Finally, in my writing process, if not my words, I will try to objectively confront whether my attitude and approach is indicative of the liberalism allegedly embodied in clinical programs or if other theoretical or philosophical labels serve as more accurate monikers for our advocacy