STU Scholarly Works (St. Thomas University)
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The 26th Mile: Empathy and The Immigration Decisions of Justice Sotomayor
No full textWhat role does judicial empathy play in assessing a judge\u27s qualifications for the highest court in the land? While President Obama claimed it as the greatest of virtues, his critics condemned it as a disqualifying vice. During her confirmation hearings, Republican senators suggested that Justice Sotomayor\u27s wise Latina comments and her decisions in a handful of cases were better indicators of her judicial philosophy than the large body of cases she had decided during her seventeen years on the bench. This article examines a number of the published immigration decisions of Justice Sotomayor that shed light on her judicial philosophy. It uses a 2008 case to frame her current approach. It then looks at her decisions in several different areas, including asylum and refugee law, the immigration consequences of crimes, citizenship law, motions to reopen, and criminal prosecutions for immigration violations. Her immigration decisions demonstrate an evolution in her thought process, as her analytical approach became more defined by the limits of the law than by its possibilities. They also demonstrate, however, a firm commitment to process. Finally, this article explores empathy as a judicial virtue, its place in Justice Sotomayor\u27s published immigration decisions, and its treatment during the confirmation process. It looks at statements by her critics that treated empathy as the antithesis of impartiality and at her response. Rather than embrace her earlier statements, she distanced herself from them and from President Obama\u27s own remarks. Thus, the opportunity for a meaningful discussion of the role of empathy as a measure of judicial excellence and as one component of impartiality was lost. In the end, her published opinions became the best way to evaluate her judicial philosophy and accusations of judicial bias
An Interpretive Framework for Narrower Immunity Under Section 230 of the Communications Decency Act
No full textAlmost all courts to interpret Section 230 of the Communications Decency Act have construed its ambiguously worded immunity provision broadly, shielding Internet intermediaries from tort liability so long as they are not the literal authors of offensive content. Although this broad interpretation effects the basic goals of the statute, it ignores several serious textual difficulties and mistakenly extends protection too far by immunizing even direct participants in tortuous conduct. This analysis, which examines the text and history of Section 230 in light of two strains of pre-Internet vicarious liability defamation doctrine, concludes that the immunity provision of Section 230, though broad, was not intended to abrogate entirely traditional common law notions of vicarious liability. Some bases of vicarious liability remain, and their continuing validity both explains the textual puzzles courts have faced in applying Section 230 and undergirds the push by a small minority of courts to narrow the section\u27s immunity provision
As Old as the Hills: Detention and Immigration
No full textIf you are reading this essay and the related symposium articles, you will learn a great deal about the role detention plays in U.S. immigration law. You will become a witness to our government\u27s use of a tool that directly and undeniably impinges on our most fundamental freedom: personal liberty. It is my hope that by writing this essay, I may contribute to a reexamination by all of us of the reasons we use immigration detention; and that we will ask fundamental questions about whether immigration detention is a legitimate tool. As we learn more, we all become witnesses to our government\u27s actions
Stories in Mexico and the United States about the Border: The Rhetoric and the Realities
No full textOur discussion will: 1) examine the concept of using word choices and metaphors as devices in storytelling to frame political, economic and social issues, which are meant to evoke certain emotional responses among specific audiences in the immigration debates; 2) describe the legal history of the border as a legal and social construct as background for the stories that are told about immigration; 3) demonstrate with examples of stories published in Mexico and the U.S. that portray how some stories about the border are being framed in the U.S. and in Mexico by identifying word choices, metaphors, audience, social and/or political connections and emotional responses provoked in these narratives, particularly examples of stories published in Mexico; 4) examine the traditional mental frames created by the border stories that do not describe the effect of U.S. policies and practices on a cross-national indigenous community; and finally 5) demonstrate how the members of the transnational tribal communities have worked to tell their own stories about the lived realities of their border experiences
Poison Pens, Intimidating Icons, and Worrisome Websites: Off-Campus Student Speech That Challenges Both Campus Safety and First Amendment Jurisprudence
No full textAs the line between off-campus and on-campus student speech is increasingly blurred by the internet, educators and courts alike are struggling to determine the limits of school authority to restrict student speech that originates off-campus but is directed toward an on-campus audience. Although students retain their First-Amendment-protected rights of free speech and expression on school campuses during school hours, these rights are subject to exceptions. These exceptions are constitutionally permissible, even where the speech could not be restricted off campus, because student First Amendment rights are \u27applied in light of the special characteristics of the school environment. Because of these characteristics, and the school\u27s interest in protecting the safety of its students, off-campus student speech that is directed toward or would foreseeably reach an on-campus audience and could be reasonably interpreted as threatening the school or any of its constituents should not be protected from school restriction or discipline. The Supreme Court has yet to be confronted with such a case, and the lower courts seem divided as to the reach of school authority to restrict such speech. The disagreement is based upon the tension between the value in protecting the robust exchange of ideas in the school environment, the need to maintain an optimal learning environment, and a very natural concern for school discipline and safety. The tension is especially pronounced in light of several well-publicized and tragic school shootings and the growing problem of cyber-bullying. The Supreme Court has repeatedly acknowledged these competing concerns, beginning in 1969 with its decision in the seminal case of Tinker v. Des Moines Independent School District. There, the Court upheld the right of students to engage in a silent, passive protest, as long as it did not cause a material or substantial disruption to school activities. The Court explained that [n]either students [n]or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. Since Tinker, the Court has recognized several categorical exceptions to the protection of student speech. Under these exceptions, school administrators may restrict student speech that occurs on campus when it materially and substantially interferes with school order and discipline; is lewd, indecent, or offensive;\u27 is sponsored by the school itself; or could be reasonably interpreted as promoting the use of illegal drugs. The most recent Supreme Court opinion in this line of cases, Morse v. Frederick, explicitly acknowledged the Court\u27s categorical approach and lends support to the recognition of additional exceptions. This article will explain the need for one such exception, that of threatening speech even if it falls short of the requirements for prosecution as a true threat. Part II will explain the Supreme Court\u27s jurisprudence in the area of student speech. Part III will explain why threatening expression has no place in the school environment even where the expression could not be criminally sanctioned, and is particularly problematic in light of recent school shootings and the growing problem of cyber-bullying. Part IV will explain why schools must be permitted to discipline students who direct off-campus threatening expression toward the school or who could reasonably foresee that the expression would come to the attention of school authorities, why existing law is insufficient to offer clear guidance to students or school administrators, and why Morse permits the categorical exclusion of this type of speech from First Amendment protection
The New Haven School of Jurisprudence: A Universal Toolkit for Understanding and Shaping the Law
No full textThe New Haven School of Jurisprudence offers a rich framework of interdisciplinary analysis of societal problems and a heuristic for inventing policy alternatives and recommending solutions that apply across cultures, throughout the planet, and over time. This lecture demonstrates the usefulness of this approach at the dawn of the 21st century, discussing the idea of ‘hegemonic international law’ and addressing discrete issues in the fields of international trade and investment as well as regulation of the global commons
Civil Procedures for a World of Shared and User-Generated Content
No full textScholars often focus on the substance of copyrights as opposed to the procedures used to enforce them. Yet copyright enforcement procedures are at the root of significant overreach and deserve greater attention in academic literature. This Article explores three types of private enforcement procedures: direct enforcement (cease-and-desist practice); indirect enforcement (DMCA takedowns); and automated enforcement (YouTube’s Content ID filtering program). Such procedures can produce a “substance-procedure-substance” feedback loop that causes significant de facto overextensions of copyrights, particularly against those creating and sharing User-Generated Content (UGC). To avoid this feedback, the Article proposes descriptive and normative frameworks aimed towards the creation of better procedures. Looking to the relevant actors, the source of procedures, and the functions of enforcement (the descriptive framework), the Article suggests principles of participation, transparency, and “balanced accuracy” (the normative framework) that might lead to private enforcement procedures that accommodate the reasonable cost and efficiency needs of copyright owners without trampling on UGC
Chevron\u27s Sliding Scale in Wyeth v. Levine
No full textIn Wyeth v. Levine the Supreme Court once again failed to reconcile the interpretive presumption against preemption with the sometimes competing Chevron doctrine of deference to agencies\u27 reasonable statutory interpretations. Rather than resolve the issue of which principle should govern where the two principles point toward opposite results, the Court continued its recent practice of applying both principles halfheartedly, carving exceptions, and giving neither its proper weight. This analysis situates Wyeth within the larger framework of the Court\u27s recent preemption decisions in an effort to explain the Court\u27s hesitancy to resolve the conflict. The analysis concludes that the Court, motivated by its strong respect for congressional intent and concern to protect federalism, applies both the presumption against preemption and the Chevron doctrine on a sliding scale. Where congressional intent to preempt is clear and vague only as to scope, the Court is usually quite deferential to agency determinations, but where congressional preemptive intent is unclear, agency views are accorded less weight. The Court\u27s variable approach to deference is defensible as necessary to prevent unauthorized incursion into areas of traditional state sovereignty, but its inherent unpredictability sows confusion among regulated parties, and the need for flexibility prevents the Court from adopting any of the more predictable across-the-board approaches to deference proposed by the Court\u27s critics. A superior approach would combine the Court\u27s concern for federalism with the certainty of a bright-line rule by granting deference to agency views where Congress has spoken via a preemption clause of ambiguous scope and no deference where Congress has remained silent
Making Effective Use of Practitioners\u27 Briefs in the Law School Curriculum
No full textThis article argues that practitioners\u27 briefs do have a place in the law school classroom. Part II of this article discusses the pedagogy behind using practitioners\u27 briefs in the legal writing classroom. It demonstrates how using practitioners\u27 briefs enriches lesson plans, heightens interest in the classroom, and helps students gain a richer appreciation for lawyers\u27 goals when they write as advocates. Part III presents some different ways of using practitioners\u27 briefs to teach persuasive writing. It examines how the author has used practitioners\u27 briefs to teach persuasive writing of the statement of facts, point headings and summary of the argument. Part IV discusses ways of using practitioners\u27 briefs in classes other than legal writing and suggests that by introducing the briefs behind the appellate opinions students read, students ultimately gain a stronger understanding of legal process. Finally, the article concludes with a summary and a brief examination of potential pitfalls to avoid when using practitioners\u27 briefs
The Florida Minimum Wage Act: Thoughts on the Impending Notice Debate
No full textAlthough litigation has yet to erupt in this arena, the 2005 Minimum Wage Amendment to the Florida Constitution laid the groundwork for what may soon become a hotbed of litigation. Specifically, the Minimum Wage Amendment ( Amendment ) set a minimum wage above the federal standard and created a civil cause of action and specifically allowed the Florida legislature or Agency for Workforce Innovation to adopt any measures appropriate for the implementation of this amendment. The result has led to little litigation to date, but the two initial cases examining the implementing legislation - Throw v. Republic Enter. Sys., Inc. and Resnick v. Oppenheimer & Co., Inc. - indicate the battles ahead will be hotly contested and may continue to lead to divergent results in the court systems. Enacted by the Florida legislature, the Florida Minimum Wage Act was the first implementing legislation created pursuant to the Amendment\u27s power. One of the most significant provisions requires a prospective plaintiff to notify his or her employer in writing of the alleged failure to comply with the statute. The statute then grants the employer calendar days after receipt of the notice to pay the total amount of unpaid wages or otherwise resolve the claim to the satisfaction of the prospective plaintiff. The ability to bring a claim directly under the Amendment and the enforceability of these statutory provisions were subsequently challenged. The first two Florida federal district courts to publish opinions regarding the enforceability of this notice provision as a precondition to filing suit directly expressly disagreed with each other, and subsequent cases have shown continued discord. As a result, employers and employment lawyers should expect a rise in litigation in this area in the near future, at least until answers to these major questions are settled