STU Scholarly Works (St. Thomas University)
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The Supreme Court\u27s Legal Culture War against Tribal Law
No full textIndian tribes have long governed themselves in a manner that developed far different than the Anglo-American legal system. Many indigenous cultures relied upon an oral tradition, inextricably intertwined with their languages, to make the ways of their people known. In these cultures, social mores tied to the geographies of traditional territories developed to ensure a form of law and order, and social control existed sufficient to maintain the societies. Many indigenous cultures had written laws as well. These rules survived after contact with the European nations and survive today in modified form. As indigenous societies reacted, changed, and sometimes all but died, their rules changed as well. The introduction of European commerce, religion, and brutality into indigenous communities forced these changes - and sometimes these changes were radical. Underlying social mores of indigenous communities changed as some communities maintained a state of active hostility with the Europeans for months, years, decades, or longer. And, as the European powers sought to enter into treaties with indigenous communities, more and more Indian tribes with titular heads began to develop. As a general matter, it appears that the more singular the tribal leadership, the less likely the tribe would survive. In contrast, the more plural the tribal leadership, the more likely the tribe would survive. Compare King Philip with the Haudenosaunee and Three Fires Confederacies. Despite this trend, indigenous societies began to mirror European governments more and more - hence, the rise of tribal government
Eliminating Conflicting Interpretations of the European Convention on Human Rights by the European Court of Justice and the European Court of Human Rights: The PDIQ System as a Preventative Solution
No full textThis article is divided into two parts. The discussion in part one focuses on the current application of the Convention by the ECJ, including the Convention\u27s legal status in the EU legal order when it is applied by the ECJ. Following this, the discussion turns to address the problems associated with the current informal relationship of the two Courts and the current application of the ECHR by the ECJ; namely diverging interpretations of the Convention. In building upon the first part of this paper, the second section provides a critical analysis of the potential solutions to addressing the inadequate protection of human rights in the EU. This part of the paper examines why the option of EU accession is not capable of making the changes that are needed, comparing this with a referral mechanism, namely the pre-decision interpretative question system, and explaining why this is a more suitable and effective solution for ensuring the harmonious application of the ECHR by the two Courts. Within this last section, the paper will provide a series of criteria that represent the needs of the EU protection of human rights, which will determine how the various options can resolve and address the existing problem
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 2 (2007)
Beyond The Death Penalty: The Development In Catholic Social Teaching
No full textBook: Beyond The Death Penalty: The Development In Catholic Social Teaching
In recent years, and especially through the leadership of the late Pope John Paul II, Catholic Social Doctrine has become strongly opposed to capital punishment in practically all cases. The Catholic Church\u27s opposition to the death penalty is based on its support for a consistent ethic of life for all of humanity. This consistent ethic also includes defending the unborn, the handicapped, victims of human rights abuses, and countless others whose human dignity is violated. This book, a collection of papers gathered as part of a project by the Florida Council of Catholic Scholarship, describes and defends the official Catholic theological opposition to the use of the death penalty in practically all cases. The book was produced by the Pax Romana Center for International Study of Catholic Social Teaching. Both bodies are hosted by and located at Saint Thomas University in Miami Gardens, Florida.https://scholarship.stu.edu/faculty_book_chapters/1016/thumbnail.jp
The Western Shoshone Struggle: Opening Doors for Indigenous Rights
No full textBy a review of the recent Western Shoshone success at the United Nations, this paper focuses on the present-day circumstances of the Western Shoshone and the ongoing impairment of Indigenous rights caused by U.S. laws and policies. This article will walk the reader through the international process used by the Western Shoshone petitioners and provide thoughts on how to build on that success and move towards full recognition, respect for and implementation of Indigenous Peoples\u27 human rights
Being Careful What You Wish For: Divisible Statutes – Identifying a Non-Deportable Solution to a Non-citizen’s Criminal Problem
No full textWhen a non-citizen is arrested, it may be possible for her to underestimate the full consequences of a criminal charge. The primary concern of the non-citizen is when she may be released from custody in order to resume family obligations or return to work before compromising her standing with an employer. With an immediate need for release from custody, a quick plea to an offense may be an attractive option. The non-citizen may not be aware of the immigration consequences of taking an imprudent plea, the ramifications of which could far outweigh the inconvenience of additional time in jail following an arrest. Many criminal convictions lead to the institution of removal proceedings against the non-citizen with the end result being that she loses her right to remain in the United States. Depending on the offense and the duration of the non-citizen\u27s residence in the United States, a waiver may be available to pardon the deportable offense and restore status in the United States. However, in many cases, the nature of the criminal offense renders the non-citizen deportable as an aggravated felon, from which little relief is available. Alternatively, the non-citizen may not have lived in the United States long enough to qualify for a waiver. Legislation has increased the number of crimes classified as aggravated felonies, and investment in national databases has led to greater apprehension of non-citizens with criminal convictions. Consequently, the number of non-citizens ordered deported from the United States based on convictions for aggravated felonies has also risen, from 10,303 in 1992 to at least 23,065 in 2006.2 This article addresses recent case examples involving convictions that, on their face, seemed to provide an adequate basis of deportability. Convictions under the criminal statutes addressed herein generally appear to encompass deportable offenses but have been held to be insufficient to assure deportability. Therefore, these examples can serve as templates for analysis of other statutes
Florida Property Law: Conveyancing and Governmental Controls Vol. 2
No full textFlorida Property Law adds two innovative features to the traditional mode of teaching the basic property course — a learning-by-doing approach and a focus on the law of one jurisdiction. In order to provide students with a deliberative learning-by-doing approach, this book is designed to present a hypothetical problem in advance of class so that the student can prepare an answer on his own for later discussion and evaluation in class. Each problem in the book is designed to be solved by reading, analyzing and applying the cases and materials that accompany it. Speed of analysis is no longer a primary factor for success in the classroom. The problems are more complex than those presented ad hoc by the teacher in class, and emphasis is now placed on the student\u27s proactive analytical abilities to solve issues on her own.https://scholarship.stu.edu/faculty_books/1019/thumbnail.jp
Intelligent Design Will Survive Kitzmiller v. Dover
No full textThe year 2005 was the year the theory of intelligent design (ID) made the headlines. It was featured on the cover of Time magazine, its study was seemingly endorsed by the President of the United States, and it became one of the most talked-about issues in the public square. However, its increasing public recognition also attracted the attention of defenders of Darwinian orthodoxy, who vowed to banish it from the realm of respectable discourse. When the Dover Area School District, located in central Pennsylvania, adopted a policy that required biology classes to be told about the theory of ID as part of a short statement introducing the topic of biological evolution, the American Civil Liberties Union (ACLU) and Americans United for Separation of Church and State filed suit. As the trial began in late September 2005, Barry Lynn, Executive Director of Americans United for Separation of Church and State, predicted that the Dover case would be the death knell for intelligent design as a serious issue confronting American school boards, period. I think this will be the last case. After several months of testimony, Judge John E. Jones III issued an opinion that appeared to be just what the plaintiffs wanted. The opinion was immediately hailed by opponents of ID as having driven a stake into the heart of the ID proponents\u27 crusade to circumvent the Establishment Clause. Initial commentary on the case seemed to assume that Judge Jones had ruled correctly, and that the only question for the courts would be how to identify and stop further evasions of the Establishment Clause. But announcements of the demise of ID were greatly exaggerated. As even Judge Jones acknowledged, his opinion has no precedential value outside the Middle District [of Pennsylvania] ; its influence will depend heavily upon its persuasive quality, and close inspection of the opinion reveals many fatal flaws. Before analyzing the opinion itself, it is necessary to review the factual setting in which the case arose, particularly with regard to the role of Discovery Institute, an organization with which the authors of this article are affiliated and one which played a role in Judge Jones\u27s analysis of the issues
Summary Judgment in Florida: The Road Less Traveled
No full textThis article will first explore the origins of summary judgment in the Florida courts. Next, the Holl v. Talcot standard (the Holl standard ) shall be discussed. The discussion then turns to arguments in favor of maintaining the Holl standard, including the great costs which arise by the application of the standard, and ultimately, a discussion debunking those arguments. Finally, partial summary judgment shall be discussed, introducing its potential to assist the practitioner in achieving, in part, progress towards a more predictable and useful summary judgment process