STU Scholarly Works (St. Thomas University)
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The Dean\u27s Welcome Address
No full textFormer Dean, Robert A. Butterworth\u27s welcome address for the Sovereignty and Sustainable Development of Indigenous Peoples, Seventh Tribal Sovereignty Symposium on January 27, 2006
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. The overriding conclusions of this project are as follows: 1) the Florida Supreme Court should revisit and modify the existing summary judgment standard; 2) the Florida Supreme Court should bring the standard inline with that of most states and the federal courts; and 3) even if the Celotex standard is not adopted, the Florida Supreme Court should articulate a clear analytical standard so that the district courts will have a consistent framework upon which to apply a factual analysis, thus enabling trial courts to make decisions that are not likely to be overturned on appeal. By taking these steps, the courts may assure that civil practitioners will have a reasonable predictability while conducting civil litigation; and summary judgment will become an effective procedural tool-one which can be used to weed-out cases that cannot prevail at trial. In the meantime, practitioners are not helpless to improve their chances of obtaining summary judgment. Through the strategic use of well-planned partial summary judgment motions, lawyers can provide trial court judges with the opportunity to grant such motions without the added concern for immediate appealability. These techniques may allow trial judges to cull needless issues from trial, or possibly stop cases that might not otherwise prevail at trial from being heard
Economic Development: A Real-Life Assessment
No full textRemarks by The Honorable Keller George, President of the United South & Eastern Tribes and Chairman of the Oneida Nation Gaming Commission, entitled Economic Development: A Real-Life Assessment
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 20, Issue 1, Fall 2007
Reflecting on Negligence Law and the Catholic Experience: Comparing Apples and Elephants
No full textAt the conclusion of a popular film, a bride\u27s father observes that even between apples and oranges, there is common ground; after all, as different as apples and oranges may be, they are both fruit. Similarly, one might begin the enterprise of comparing torts and Catholicism by expecting to find at least some common ground because despite their differences, they are both law. In functioning as such, both claim to guide people to modes of better behavior, and both are communicated in languages that speak of justice and mercy, good and bad, right and wrong, and even final judgments. Under such circumstances, one could assume there is sufficient commonality for fruitful comparison. Such an assumption, however, would be wrong. The worlds of tort law and Catholicism function in such conceptually different frameworks, and perceive their roles as laws so differently, that attempts to compare them are likely to yield only frustration. The framework in which tort law functions is one of duty, breach, injury, and cause. The law of Christ, meanwhile, mentions none of these requirements. Instead, Christ\u27s instruction functions within a framework of love. In fact, Christ insisted that [t]he whole law and the prophets depend on these two commandments[:] You shall love the Lord your God with all your heart, with all your soul, and with all your mind[,] and [y]ou shall love your neighbor as yourself. Paul reaffirmed this framework for the early Church when he instructed, [o]we nothing to anyone except to love one another; for he who loves his neighbor has fulfilled the law. One cannot bridge the gap between the law of duty, breach, injury, and cause and the law of love by defining these terms. From the outset, such an endeavor must fail because duty acknowledges an obligation to do something, while love acknowledges no such obligation. Instead, love connotes an action freely performed as a gift, the greatest act of love being to give your life for your friends. The Catholic Church has subsequently generated the body of Canon Law, which carries with it required behaviors. Yet, it has done so apologetically, recognizing that the creation of such duties is to be minimized so that the law of love can be given cognizance in all contexts where there is no need of a strict observance of the law on account of the public good and general ecclesiastical discipline. Any discussion, then, of tort law and Christ\u27s law must begin with the recognition that the two are intended to relate with people in completely different ways. Thus, although they are both labeled as laws, their comparison is more akin to comparing apples and elephants than apples and oranges. Closer study of tort law and Christ\u27s instruction yields only higher degrees of disparity. This piece, for example, compares negligence, the largest field of tort liability, with Catholic thought and tradition. In doing so, the piece must juxtapose debates over words with appeals for action, compare a battle between objectivity and subjectivity with the fulfillment of truth, and consider the difference of worldview experienced by the eye of ordinary vigilance and the eye of Christ. Ultimately, it must compare a system that calls for people to be perfectly reasonable with a calling for people to love to a degree that, as Mother Teresa said, can be perfectly unreasonable. To accomplish this task, the piece first will present the questions that have been seized upon and preserved by American tort law from the conflicting opinions of the classic negligence case of Palsgraf v. Long Island Railroad Company. The piece will then bring teachings from the Catholic tradition to bear on those questions. In doing so, the piece will demonstrate that not only do Catholicism and tort law differ on the way in which these questions should be answered, but, more importantly, they differ on whether these are questions that should guide human behavior at all. Though awkward, the attempt to see negligence in the light of Christ\u27s law is worth undertaking if for no other reason than to come to grips with what negligence law is and what it cannot be. Surely, it can be our best attempt to maintain some notion of equity in an imperfect and fallen world. If, however, we expect to find that negligence law is the voice of Divine Justice in America, we will be sorely disappointed. This disappointment should lessen neither one\u27s commitment to make the tort system better, nor one\u27s willingness to use it as a forum for ministry and healing. However, it should caution one to be careful neither to take too seriously the religious imagery of our legal system nor to forget that America is for the Christian but the land of his sojourn
Sanchez-Llamas v. Oregon: A Missed Opportunity in Treaty Interpretation
No full textThis note will explore the Vienna Convention and determine through a systematic approach to treaty interpretation whether the VCCR creates judicially enforceable rights. Part II will present a background of the Vienna Convention, and will discuss how this treaty has previously been interpreted by the Supreme Court of the United States and the International Court of Justice ( ICJ ). Part III will provide a statement of the facts, the procedural history, and the Supreme Court\u27s holding in Sanchez-Llamas. Part IV will analyze the Vienna Convention\u27s text, the Executive Branch\u27s interpretation of the treaty, the travaux preparatoires, the VCCR\u27s ratification process, and how other states have domestically implemented the international agreement. This section will detail the overwhelming evidence that the Supreme Court could utilize in order to rule that the VCCR does not create individual enforceable rights
Confessions of a Self-Study Coordinator: A Guide for the Perplexed
No full textThe author of this article remained addicted to Westerns on television and in theaters as a child during the 1950s. He remembers a recurring image in the Westerns of that era: a couple of unshaven townspeople sitting on a rustic wooden bench outside the sheriff\u27s office with their faces partially covered by cowboy hats as they slept slumping in a sitting position on the bench. When the sheriff left or entered his office, one or more of these people might lift his or their hats and open one eye greeting the sheriff with a howdy sheriff. In August, 2003, at the start of the 2003-04 academic year, the author of this article served as one of these somnolent sheriff\u27s office props at his law school, and something unusual and out of character occurred. The sheriff walked out of the sheriff\u27s office, shook him awake, stood him up from the ever-present bench, pinned a badge on him, and deputized him. In this case, the new Dean of the author\u27s law school walked up to the author on the first day of school and told the author to prepare a Self-Study for an American Bar Association ( ABA ) sabbatical visit to occur in February, 2005. The new deputy was shocked, befuddled, dismayed, and frightened with the prospect of coping with what appeared to be a group of marauders intending to visit town, the ABA inspection team. What follows are some thoughts about the ABA sabbatical inspection in the context of a Self-Study coordinator
Privatizing Antidiscrimination Law with Arbitration: The Title VII Proof Problem
No full textThis Article will examine the bona fides of the competing claims for and against waiver. The Article\u27s first part demonstrates how Title VII lost its pedigree and concomitant judicial attention over time. This part shows the Supreme Court\u27s shift from its liberal interpretation/employee protectionist model that limited the role of non-judicial players such as arbitrators. This interpretive shift, narrowing statutory guarantees, was part of the foundation of waiver jurisprudence
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 19, Issue 3, Spring 2007
Lessons from Florida: Swing Low, Sweet Chariot
No full textBev and Jim have so much to be thankful for. You see, their youngest daughter, Samantha, was born with Turner\u27s syndrome. Turner\u27s syndrome, without getting too medically complicated, sentences a child to a life of being too short.\u27 The prospect for Samantha to be in the normal range of height was not good. Bev and Jim then turned to the Human Growth Foundation for help. Through the work of this Foundation and the extraordinary commitment of these parents to the Foundation and their child, Samantha was able to receive human growth hormone injections. These injections coupled with other treatment have enabled Samantha to live not only a normal but remarkable life. Now a little over five-feet tall, Samantha, an honor student in high school and in college, is a medical doctor finishing her residency at a local hospital. A phenomenal tribute to the perseverance and courage of a mother, father and child! In the hopes of repaying their debt for all of the help, support and encouragement Bev, Jim and Samantha received, they set up the S Foundation, a non-profit foundation named after Samantha, to aid children afflicted with Turner\u27s Syndrome and their families. Much like other foundations, Bev, Jim and Samantha\u27s goal was to provide a summer camp opportunity for these children and their families. Created in Florida, the S Foundation complied with all of the state registration requirements as well as the Internal Revenue Service regulations to become a non-profit foundation that could engage in fundraising activities. Calling on a friend who owns a car dealership, Bev and Jim secured a fully loaded sports car for a fraction of the retail cost of the car. They then ventured to set up and publicize a raffle drawing for the car. The idea was to sell 1,000 raffle tickets at 50,000. The buyer then said he would not pay $50,000 for the tickets and, in fact, by law, was entitled to the 500 tickets without paying any money. Bev and Jim were dumbfounded. To their knowledge, after speaking with lawyers and state government officials, they had never heard of such a law. This potential raffle ticket buyer then said that if Bev and Jim did not give him the remaining raffle tickets for free right then, he would contact the police department, have the raffle shut down, and put Bev and Jim in jail. Now, Bev and Jim were not only dumbfounded but also a little scared. They shut down the car raffle immediately but declined to give this person any raffle tickets. It turns out that this particular potential raffle ticket buyer was acting on a tip from another person who was affiliated with a different charitable foundation who happened upon Bev and Jim\u27s foundation raffle. It seems that the tipster\u27s foundation had also been hassled by another charitable foundation in the same way, resulting in the termination of their raffle. The sad truth is that, under Florida law, this potential raffle ticket buyer and the tipster got it right! Bev and Jim, by law, must give away, without any donation or purchase, the remaining raffle tickets to whoever requests them! No good deed goes unpunished! The purpose of this article is to figure out how such a result could be sanctioned by law. The first part of this article will provide a brief description of lotteries or games of chance throughout history. The second part of this article will overview Florida law concerning the operation of raffles or other games of chance by charitable organizations. This section will specifically focus on the unusual catch 22 provisions in the Florida statutes dealing with the purchase of raffle tickets. The third and concluding part of this article will suggest a solution to the problem created by the Florida law