STU Scholarly Works (St. Thomas University)
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Minority Language Rights: Historical and Comparative Perspectives
No full textLanguage is an instrument of communication that brings us together. Language is an element of identity that distinguishes us from one another. Language education is a means of leveling the playing field and giving all an equal opportunity. Language education is a way of destroying non-official languages and nonstandard language varieties and inevitably disfavors native speakers of those other languages and language varieties. Such are the paradoxes that every government must confront, from the largest to the smallest. Today, these questions of community and nation are being influenced by international organizations and treaties, transforming practice in spite of national traditions and a lack of enforcement powers. Enforcement of such provisions remains primarily national and internal in the wealthy countries and international and external for the poorer countries, such as the new members of the European Union. With some 6,000 languages distributed in 192 member states of the United Nations, every country has minority language issues. Achieving harmony and peace among peoples of different languages and cultures has depended on making all peoples feel that they are part of a given political entity, that their existence is not threatened. Failure to achieve those goals has exacted a heavy price, contributing directly to the First and Second World Wars as well as to numerous more localized conflicts. As a result, after each of these world wars the international community has attempted to address minority rights. President Woodrow Wilson of the United States declared, at the Peace Conference following World War I, [n]othing... is more likely to disturb the peace of the world than the treatment which might in certain circumstances be meted out to minorities. In the following remarks, I shall first analyze definitions of minorities and minority languages and then look at the origins of the Western tradition of human rights in general and linguistic rights in particular. Then we shall examine how different national traditions have given institutional recognition to linguistic minorities. Finally, we shall look at one example of the types of problems that remain even if minorities are recognized and granted some protection
Drastic Action: The 1983 Course Boycott at Harvard Law School
No full textProgress often comes slower than most want. No one knows this better than black Americans. After slavery, it took another century for blacks to finally receive equal treatment under the law with the Civil Rights Act of 1964 and the Voting Rights Act of 1965. But after the big hopes following the Civil Rights Movement, the lack of progress hurt all the more. Most blacks assumed that with the dismantling of Jim Crow, equality would surely follow. This, however, was not the case. By the 1980s, few blacks still reached the pinnacle of success. The black students at Harvard were acutely aware of this fact. Although they were able to attend a top law school, there were no black professors available. After one wrong move by the Dean, the minority students at Harvard were fed up.9 And the boycott was on
Blackwater and the Privatization of Immigration Control
No full textIn this article, I examine the significance of Blackwater\u27s move to the border and its recent post 9/11 involvement in immigration control. I argue that Blackwater is symbolic of a much larger immigration industrial complex, privatizing decades of border militarization and low intensity conflict that, as author Tim Dunn has documented, has been waged against border crossers and residents since the 1970s. I also argue that Blackwater is part of a post-9/11 neo-liberal regime that is designed to re-territorialize and privatize the war on terror on the domestic front. Finally, I contend that the immigration industrial complex, with Blackwater quickly taking the lead, figures prominently in what Naomi Klein refers to as neo-liberal shock therapy, which is undemocratic to its core. In Section II, I introduce the basic argument for Naomi Klein\u27s Shock Doctrine. In Section III, I examine how immigration law provides a supporting infrastructure for privatization. In Section IV, I examine the immigration industrial complex in the context of Klein\u27s thesis
Religious Reparations from the Trans-Atlantic Slave Trade: Forming Demons, Cults, and Zombies to Justify Black Enslavement
No full textWhen religion is discussed in a legal setting, the topic is typically an examination of whether a law is either dealing with religions equally or staying out of religious affairs. The Western world has concerned itself with issues such as prayer in school, references to God on currency, religious attire in classrooms, and biblical texts in courthouses. These problems deal with the negative obligations of a state to not impose a religion on its people. The examination found in this article, however, will consider religious freedom from a different perspective. It will analyze freedom of religion in terms of the positive obligations of states to rectify past discrimination. Presently, the interpretation of freedom of religion under international law mechanisms does not require a state to produce a tolerant environment through education. Although there have often been situations where a state has promoted a particular religion or outlawed another religion, religious freedom has not been construed to include reparations for past actions. The focus of international law is on the present state of a nation\u27s laws and whether those laws are religiously neutral. While this removal of government interference with freedom of religion is essential to many, it does not ensure freedom of religion for all individuals. In fact, for some religions, state neutrality leaves the atmosphere of that state as one that is oppressive to religions that have been disfavored for centuries. Without additional safeguards, expression of religious beliefs is interrupted by fear of physical or verbal abuse. Thus, the concept of religious freedom must be reassessed to determine whether religious reparations might be more appropriate than religious neutrality in certain situations
Regional Human Rights Courts and Internal Armed Conflicts
No full textThis article explores the role of regional human rights courts in internal armed conflicts and asks the question: How have regional human rights courts contributed to the development of and interplay between, international humanitarian and international human rights law in internal armed conflicts? In order to address this question, I have first set forth a brief discussion of the laws of war ( LOW ) as they pertain to internal armed conflict. This discussion will establish the framework for a discussion of the interplay between International Humanitarian Law ( IHL ) and International Human Rights ( IHR ) and, more specifically, why issues of convergence arise with regard to these two bodies of law. Next, I have examined the issue of convergence by looking at the approach taken by the International Court of Justice ( ICY\u27). Specifically, I have examined the ICJ\u27s approach in both the Legality of the Threat or Use of Nuclear Weapons ( Nuclear Weapons Opinion\u27 ) and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory ( Wall Opinion ). I then compared the ICJ\u27s approach to the approach taken by regional courts in addressing human rights violations during internal armed conflict with a focus on the European Court of Human Rights\u27 ( ECtHR ) opinion in the Isaveya cases, the Inter- American Commission of Human Rights\u27 ( IAComHR ) decision in the Abella case, and the Inter-American Court of Human Rights\u27 ( IACtHR ) decisions in the Las Palmeras and Bamaca Velasquez cases. These cases provide a framework to examine the contribution that regional courts have made in developing a coherent jurisprudence on this issue. Of course, if the regional court decisions are, in fact, narrow textual decisions then their overall contribution to the jurisprudence on this issue is limited. This article examines the implications of these decisions regarding the relationship between IHL and IHR, the challenges that these decisions pose to the current understandings of the scope of each area of law, and what this all may mean for the future of laws governing internal armed conflicts
Reconciling the Public Policy Exception to Enforcing Contracts with Title VII\u27s Public Policy on Disciplining Harassers
No full textThis article looks at the evolution of the public policy doctrine and its effects on Title VII when unionized employees are dismissed for harassment. Some writers have questioned whether the Court eliminated the public policy exception by defining it so narrowly. But, the focus of commentary has been on the effects of the Eastern decision in the traditional collective bargaining context where the need to limit judicial involvement is great. However, the public policy doctrine\u27s impact is no longer limited to traditional contract issues that are unregulated. As a result, the doctrine\u27s impact on the operation and goals of Title VII is worth addressing. Part I of the article traces the evolution of the public policy doctrine from its common law commercial roots to its application in the collective bargaining or labor relations context. This part shows how courts historically balanced the interests of private bargainers and the public interest in order to determine whether a contract should be enforced. Part II looks at the application of the public policy exception to collective bargaining contracts. This part shows a clear and well-defined public policy articulated by Congress and the judiciary to prioritize the contract and its arbitration provisions over judicial notions of justice. To achieve this, the public policy exception to contract enforcement was narrowly defined, and this has worked well to insulate the private bargain from judicial review. Part III of the article shows the operation of the public policy doctrine in the Title VII context. Title VII requires that employers take corrective action against harassers and reserves an important role for judicial resolution of discrimination disputes. This part evaluates whether the doctrine frustrates these goals by insulating arbitral awards that reinstate harassers fired to rid the workplace of discrimination. Part III shows that Title VII does not evidence a public policy to discharge all harassers, and that arbitrators reinstating harassers usually impose some form of discipline which is consistent with Title VII\u27s command of corrective action. Part III also shows arbitrators consider the dictates of Title VII and its goal of protecting workers from discrimination, in addition to the contractual interests of the grievant. By doing this, discrimination victims get the kind of protection Congress envisioned the judiciary would grant, and therefore no public policy is frustrated
Facing Justice: Ethical Choices in Representing Immigrant Clients
No full textAmong the core lessons learned by lawyers representing immigrant clients is how to build trust in a cross-cultural setting.\u27 Trust-building between attorneys and their clients usually is an ongoing process. As a client\u27s trust in her attorney grows, it is not unusual for new information to emerge that the client did not feel prepared to reveal in the beginning. For example, in gender-based asylum or battered spouse cases, clients are often reluctant to reveal that they have experienced rape or other forms of sexual abuse, and attorneys may not identify symptoms of post-traumatic stress absent striking indicia of trauma or memory loss. At other times, clients may withhold evidence, particularly past criminal activity, that may or may not be relevant to the merits of their case out of embarrassment or fear that their lawyers will refuse or withdraw representation. At other times, some clients may feel compelled to provide fraudulent documentation to corroborate their claims. And at still other times, clients may seek to put a positive spin on a bad situation. As the client becomes more comfortable with the attorney, however, she is more likely to share this delicate information. If and when a client ultimately reveals the truth\u27 surrounding this information, the timing of its revelation can raise major ethical dilemmas for her attorney. Many times, a crisis could have been averted if the client revealed this new information before trial or the filing of pleadings. Revelation of new or different information after the case has progressed to a critical stage, however, often threatens to derail the case altogether, placing the client\u27s advocate in an ethical quandary. This Article will explore the particular challenges encountered by an attorney when his client disclosed damaging information over the course of his representation in immigration court which conflicted with information that was previously on the record. In so doing, this Article will attempt to address the broader question of how to apply ethical norms in an increasingly draconian legal environment. On December 26, 2005, The New York Times published a front-page article describing several federal judges\u27 scathing critiques of immigration judges\u27 handling of immigration cases. The author cited one opinion by Seventh Circuit Court of Appeals Judge Richard Posner, who wrote that \u27the adjudication of these cases at the administrative level has fallen below the minimum standard of legal justice. The article also references another appellate judge from the Third Circuit Court of Appeals who described how \u27time and time again \u27 he had to rebuke immigration judges for their \u27intemperate and humiliating remarks. In apparent response, less than two weeks later, on January 9, 2006, U.S. Attorney General Alberto Gonzales issued a memorandum to immigration judges expressing concerns about these reports and concluding: I believe there are some whose conduct can aptly be described as intemperate or even abusive and whose work must improve. \u27 This Article will examine how one attorney ( Attorney S ) confronted an ethical crisis at the eleventh hour of his case. The crisis was the result of competing obligations Attorney S had towards his client ( Bertha Harwood ) and the tribunal when his client provided him with certain information after her Individual Hearing that conflicted with information on the record. The Article will examine the process by which Attorney S assessed his ethical obligations towards his client of zealous advocacy and confidentiality and his competing duty of candor toward the tribunal under both the Model Rules of Professional Conduct ( Model Rules ) and the EOIR Rules of Professional Conduct. Specifically, the attorney in this case grappled with the question of whether he had to take remedial action under the rules, and if so, what remedial measures were appropriate. After much reflection, he chose a course of action that reframed certain questionable evidence but which favored the interests of his client over absolute candor towards the tribunal. Although he ultimately concluded that he was acting within the bounds of the relevant rules, Attorney S recognized that the choices he made tested the outer limits of his ethical obligation of candor toward the immigration court, and that a more cautious attorney might have made different ethical choices. Part II of this Article provides the backdrop of the governing rules of professional responsibility, including relevant Model Rules and the EOIR Rules, exploring the relationship between the two sets of rules. Part III presents the story of Attorney S\u27s representation of his client and the ethical dilemmas he faced in his representation of her. Part IV sets forth conclusions about whether the ethical and moral choices the attorney made were consistent with his professional obligations. It also attempts to arrive at some broader lessons regarding the appropriate role of the immigration practitioner when the duties of zealous advocacy and confidentiality on behalf of the client collide with the duty of candor toward the tribunal in the current draconian context of immigration law enforcement
Rebuttal to Irons
No full textWe wrote a serious critique of the Kitzmiller ruling. Rather than deal with the substance of our arguments, Peter Irons responds primarily with red herrings, personal attacks, and erroneous statements. With merely 1,000 words to rebut, we highlight merely some of the problems
Standing with Dignity: Protecting Indigenous Rights and Traditional Ways in the United States
No full textRemarks by Carrie Dann, Western Shoshone activist, entitled Standing with Dignity: Protecting Indigenous Rights and Traditional Ways in the United States