STU Scholarly Works (St. Thomas University)
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Looking for Fair Use in the DMCA\u27s Safety Dance
No full textLike a ballet, the notice-and-take-down provisions of the Digital Millennium Copyright Act ( DMCA ) provide complex procedures to obtain take-downs of online infringement. Copyright owners send notices of infringement to service providers, who in turn remove claimed infringement in exchange for a statutory safe harbor from copyright liability. But like a dance meant for two, the DMCA is less effective in protecting the third wheel, the users of internet services. This Article puts forth a fair-use friendly way of reading the DMCA to better protect users of online services. This Article examines the structure of the Copyright Act and broader principles of procedural fairness, concluding that permitting copyright owners to obtain removal of fairly used materials would accomplish de facto ex parte seizures of speech
Romance is Dead: Mail Order Bridges as Surrogate Corpses
No full textThis Article examines consumption in the mail-order bride industry as a normative explanation for the public health risks posed by sex trafficking. Sex trafficking, when deconstructed into an epidemic of consumption, produces a conceptual tool for understanding the health risks of the industry. Consumption exposes the international trafficking of women as a manifestation of necrophilia. Psychoanalyst Erich Fromm described necrophilia as representative of a disposition of manipulation, control, violence and force and not merely the attraction to and intercourse with dead bodies. The public health risks posed by sexual trafficking are intimately related to the psychological health of the consumer husband-as-necrophile. Part I of this Article explores the relationship between law and violence in the mail-order bride practice. The mail-order bride industry is widespread and the United States has devoted substantial legislative energy to curing the abuses that have resulted from the industry. Part II discusses how the economy of purchased sex perpetuates abuse. The economic basis of the mail-order relationship degrades the foreign spouse precisely because she is financially worse-off than her husband. Part III explores how the consumer husband is a symbol of the sexuality he consumes. The consumer husband\u27s distorted view of sexuality is fueled through the dehumanization of women. Part IV connects the consumer husband\u27s dehumanizing impulses to necrophilia
Mothers Without Citizenship: Asian Immigrant Families and the Consequences of Welfare Reform (Book Review)
No full textA View from below: Grassroots Perspectives on Human Rights, the U.S. Embargo and Everyday Life in Contemporary Cuba
No full textI would like to contribute to today\u27s discussion by doing two main things: (1) by looking at the issues at hand, i.e. U.S. policy towards Cuba, in particular the U.S. embargo, as well as the human rights situation on the island, from a Cuban grassroots perspective i.e. share with you how average Cubans think and feel about these issues; and (2) reflect on some of the changes and continuities and the tensions between the two that have taken place in Cuban society over the past ten to fifteen years and how these processes may factor into future developments both on island and in terms of policies towards it
The Banality of Excessive Defender Workload: Managing the Systemic Obstruction of Justice
No full textThis article focuses on the impact of public defender\u27 ( PD ) excessive caseload ( EC ) and related indigent defense issues on the values of professionalism, stewardship, and patriotism. It can be regarded as a sequel to my previous article, Independent, Professional Judgment: The Essence of Freedom, which dealt with the same fundamental values, but a wider range of topics. The article is intended as a reference, including recent material, in a somewhat different context from previous studies. In my experience, for the last 40 years, the normal functions of our state and local criminal justice systems ( CJS ), especially indigent defense and the right to counsel, have continued to deteriorate, despite prodigious efforts by many dedicated people and organizations. In the 1990\u27s, the Supreme Court of Florida dealt with a number of appellate cases, involving egregious delays for thousands of convicted defendants, where many defendants had served their prison sentences before the PD even filed the briefs to which the clients were constitutionally entitled. New norms at the trial level have now sunk to the point that the right to counsel for indigent people, and the system that depends on it, in Florida (and in many other jurisdictions), is a sham. As the Supreme Court of Florida has noted, an inundated attorney may be only a little better than no attorney at all. This article provides some societal context for the problem, followed by a brief review and analysis of: 1) the right to the effective assistance of counsel as related to excessive caseload, and 2) the powers, duties, attitudes and actions of the entities most directly involved (e.g., the courts, integrated bar, defenders and prosecutors). This article is offered as a framework for efforts to redeem professionalism, our adversarial system and individual rights, not so much through litigation, but through changing the prevailing culture of our CJS and judiciary. Reflecting my professional experience and my hope for improvement, Florida is a focus of this article. Florida has an extensive history of dealing with excessive caseload, especially through litigation. The state serves as a good example of a national problem, providing concrete examples of EC dynamics and points of departure for other jurisdictions
Why Human Rights Confuse the Sanctions Debate: Towards a Goal-Sensitive Framework for Evaluating United Nations Security Council Sanctions
No full textThe article searches for a comprehensive moral framework by which to evaluate United States Security Council sanctions. It explores the goals of UNSC sanctions, finding that they largely match the goals of criminal punishment. It then concludes that the discourse of human rights, frequently deployed to justify sanctions, actually confounds these goals. For instance, where a sanction aims to deter, reform, incapacitate, punish, or exclude a state that violates human rights by denying political liberties, the sanction is usually protracted and is comparatively the least likely to its goal. Procedurally, a sanction fails in this situation because of a catch-22. it aims to cure the citizenry\u27s lack of political power, yet that political power is a prerequisite to affecting the change the sanction seeks. Normatively, it fails because the target state, non-democratic as it is, does not share the sanction\u27s value set. For similar reasons, citizens in a liberal democracy may, under certain very narrow circumstances, be collectively responsible for their state\u27s actions, but citizens in a non-democratic state could almost surely not be so responsible. Yet sanctions are costly, and most of their costs are borne by poor, disenfranchised individual citizens in non-democracies. Therefore, justifying sanctions in terms of human rights may require calling for sanctions even where they are bound to be long, futile, and misdirected. Or, more surreptitiously and more perniciously, the theorist may dodge this dilemma by narrowing his or her list of human rights\u27 to exclude political rights. Since neither result is acceptable, the human rights language is counterproductive. In its place, the article embraces a framework sensitive to the sanctions\u27 underlying goals while aspiring toward liberal democratic accountability and international political legitimacy
Foreword: Criminal Law Issue
No full textIt is my pleasure to write the foreword to this inaugural criminal law issue. The issue consists of four timely and incisive articles that underscore the importance of the procedural and fair trial guarantees embodied, respectively, in the Fourth and Sixth Amendments to the United States Constitution. A common theme underlies the message conveyed by the distinguished authors: the extent to which the interpretation of criminal procedural rights by both the Supreme Court and state appellate courts affect the everyday administration of justice in the United States
Law as a Means to a Public Order of Human Dignity: The Jurisprudence of Michael Reisman
No full textWords cannot do justice to the man who has transformed the lives of so many of us who have gathered at the Yale Law School today. But words are all we have to share our feelings, as we must, over space, and over time. Michael Reisman is the man we have the pleasure and deep satisfaction to honor and to celebrate: our teacher, our guide, our mentor, our friend. He has touched our lives in a variety of ways. In my case, the introduction to his magnificent work was made by a young South African scholar at the Peace Palace in The Hague, and I never looked back. His jurisprudence of insight and empowerment was a liberation indeed-a fountain of truth on how law is really made and changed, and a treasure trove of wisdom on what considerations should guide the decisions we consciously and unconsciously make. He made us, who call themselves professionals of the law, realize that we are not mere bouches de la loi; he challenged us to live up to the role we actually play in society and to assume the responsibility that comes with leadership. This statement of friendship and respect is designed to highlight our honoree\u27s distinct place in the pantheon of jurisprudence (Part I); his keen sense of observation and analysis (Part II); his consummate skills of communication (Part 1II); and his abiding quest for a public order of human dignity (Part IV)
Introduction to the Study of Law: Cases and Materials, 3rd Edition
No full textThis coursebook is designed for use by beginning law students. The first three chapters provide background reading for the summer months preceding law school and are intended to initiate the student to legal reasoning, law school, and the case method of study. The four topics following these chapters provide several assignments for teaching an orientation course. These assignments focus on the techniques of the case method of study in the areas of Contracts, Property, Torts, and Criminal Law and include explanatory and thought provoking discussions, sample case briefs and sample questions. The purpose of the orientation course is not to teach substantive law, but to initiate the student to the methods of legal reasoning. brbr iThe Third Edition of Introduction to the Study of Lawi adds a number of new readings while at the same time streamlining the existing readings to provide a greater focus on what a student needs to prepare for the unique method of study found in law school. The previous edition split the nature of law and legal reasoning into separate chapters; this edition combines them in order to show their integrated nature. The final chapter continues to introduce the student to the unique case method of study, but this edition has added material to provide further guidance on the mechanics of reading, annotating, and briefing cases. The topics remain mostly the same, with a few exceptions. The most notable change is the addition of a topic in the area of criminal law and statutory analysis.https://scholarship.stu.edu/faculty_books/1017/thumbnail.jp