STU Scholarly Works (St. Thomas University)
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The Inner Lives of Children in Lesbigay Adoption: Narratives and Other Concerns
No full textThis article attempts to review some of the serious, non-stereotyped concerns that underlie some of the objections of thoughtful legal commentators to adoption of children by gay and lesbian couples or partners. These objections fall into four categories of significant concern: (1) the best interests of children, (2) the integrity of the legal institution of adoption, (3) inappropriate judicial behavior, including manifestation of bias and animus, and the exercise of (legislative) policy-making prerogatives, and (4) the failure to explore, much less carefully consider, alternative solutions (and the hasty abandonment of processes of careful, incremental change to embrace a radical, but popular, all-or-nothing policy revolution)
B-I-N-G-NO - The Legal Abuse of an Innocent Game
No full textThis article examines how technological advancements have transformed the innocent game of bingo into what appears to be an electronic slot machine. This article describes the expansion of electronic bingo into areas that have considered gambling against public policy. Specifically, this article explores how tribal gambling across the United States and charitable gambling in Alabama have manipulated laws to create legal Class II casinos free of state taxation and revenue sharing. Finally, this article proposes modifications of the legal definition of bingo that will harmonize the law with technological advancements and return bingo to a harmless amusement game
The Rule of Law and the Origins of the Bill of Attainder Clause
No full textUntil recently, modem bill of attainder analysis has been fairly simple for courts and litigators alike - in order to be considered a bill of attainder, a law must (1) specify the affected persons; (2) impose punishment; and (3) lack a judicial trial. Furthermore, the case law defining the appropriate analysis in bill of attainder cases is minimal and simple to understand: as one recent appointee to the D.C. Circuit has aptly noted, [t]he Supreme Court\u27s approach to the bill of attainder clause has been developed in only a handful of decisions. It is surprising that such a historically non-controversial clause of the Constitution has become such a potent weapon in the hands of contemporary litigators. However, within just the last couple of years, litigants have more aggressively utilized the Constitution\u27s Bill of Attainder Clause in an increasing variety of cases involving the following issues: petitions of habeas corpus, the invalidation of regulatory schemes, housing ordinances, the constitutionality of a DNA database, and the Elizabeth Morgan Act. Perhaps the most controversial case involving bill of attainder analysis in our country\u27s history was decided just this year in the U.S. District Court for the District of Nebraska. In that case, the district court decided to invalidate a state constitutional amendment\u27 on the basis that it was an unconstitutional bill of attainder because it singled out gays, lesbians, bisexuals, and transsexuals for legislative punishment. With so many cases revolving around bill of attainder analysis, and given the nature of some of the claims, it is almost certain that the Supreme Court will revisit its bill of attainder analysis in coming years. Given the varied and many attempts to utilize what has been termed a Constitutional weapon, \u27 this paper is meant to be a guide to those interested in the actual origins of the bill of attainder clauses in the Constitution. There are a growing number of judges who seek to unearth the statutes\u27 original meanings rather than enforcing whatever modem readers might take the statutes\u27 language to mean. However, there is as great a paucity of discussion concerning the origins of the bill of attainder clause in academia as there is in Supreme Court case law. Therefore, this paper is dedicated to a discussion of the origins of the bill of attainder clause, and thus fills some of the academic void by presenting a theory as to how the clause was understood at the time of its incorporation into the Constitution. The purpose of this paper is twofold: first, this paper examines the history of bill of attainder usage that would have been familiar to the founders; and second, this paper theorizes that the founders\u27 dedication to the Rule of Law is what led them to adopt what we know now as the Bill of Attainder clause in the Constitution. Ultimately, the hope is that this paper will be an aid to those interested in the original understanding of the Constitution during this time of increased interest in the Bill of Attainder clause
Zoned Out! Examining Campus Speech Zones
No full textIn March 2002, twelve students were arrested at Florida State University for protesting outside the university\u27s designated speech zone. The same spring, students at West Virginia University were intimidated for engaging in political speech outside that institution\u27s two free speech zones. On November 13, 2002 prolife demonstrators were arrested when they stepped outside the free speech zone of California\u27s Citrus Community College. A student filed suit on May 20, 2003, challenging the regulation. On March 6, 2003 suit was filed on behalf of students of the University of Maryland at College Park challenging that university\u27s speech zone regulations governing public speaking and leafleting. A student at the University of Texas at El Paso sued on similar issues in May 2003, and a student at Texas Tech University\u27s law school sued in June 2003. On September 30, 2004 the federal district court in the latter case found a portion of the Texas Tech speech zone policy unconstitutional. In early 2005, after a controversial student protest against illegal immigration, the president of a Latino organization at the University of North Texas called for more university oversight of student speech, asking specifically that the university administration preview the content of expressive activities scheduled for the university\u27s speech zones. These are but a few of the incidents involving many institutions in recent years. Controversy has also occurred at: Shippensburg State University in Pennsylvania, the University of Houston, the University of South Florida Miami-Dade Community College, Appalachian State University, Tufts University, and the University of Wisconsin at Whitewater. An article in Trusteeship magazine declared: To a greater degree than at any time in recent memory, the actions and policies of higher education institutions concerning student speech not only are being scrutinized, but they also are becoming the subject of legal challenge with potentially grave consequences. \u27 Incidents involving campus speech zones\u27 are frequently followed by a contentious battle involving the university, the students, and sometimes a free speech advocacy organization. Civil activist groups, such as the FIRE, the ACLU, and the Rutherford Institute, often become involved. Regardless of whether a lawsuit is filed, the confrontation is often followed by a media campaign initiated by those opposing the university\u27s policy. The media campaign will likely disparage the university, accusing it of willfully disregarding the United States Constitution and the free speech rights of its own students. This strategic tactic is intended to focus negative attention on the university, with the goal of causing public embarrassment. The media campaign generally succeeds in achieving this goal. Such a campaign can have serious adverse effects on a public institution that depends on state appropriations, grants, and donations for its funding. It can also negatively impact the reputation of the university and harm its ability to recruit students and faculty. Clearly, use of campus speech zones by universities is a hot topic, one which will likely continue to be the subject of controversy and litigation. What is a responsible, law-abiding public university to do about campus speech zones? Simply eliminate its use of campus speech zones before an issue arises? Wait to see whether it is sued, then react? Perhaps the university should keep its head down and see if this is merely another short-lived higher education phenomenon. After all, current law does not necessitate the elimination of all campus speech zones. How much time, possibly the most valuable resource of today\u27s over-extended university official, ought to be devoted to this question in light of other seemingly more urgent questions confronting university officials? The issue of whether universities should eliminate their use of campus speech zones does not arise in a vacuum. Not only does it have First Amendment free speech implications, it is also often connected to the problem of hate speech and the controversial issue of whether universities can or should have speech codes. This hot topic also arises against the backdrop of post-9/11 America, a time when many Americans feel vulnerable and have heightened concerns about safety. Universities and society in general are concerned about the threat of terrorist attacks against soft targets such as universities. Some are also concerned, however, about the implications of more governmental intrusion into everyday life and the potential impact of the Patriot Act on universities and society in general. Now is a time of heightened international tensions, concern, patriotism, nationalism, distrust, feelings of vulnerability, and perhaps animosity toward certain foreigners and controversial ideas. All of these emotions are occurring during an era when the respective rights and responsibilities of the university, its students, and the community are already in flux and likely to change further. Moreover, the last several years have been times of especially scarce state funding for public higher education, during which the cost of tuition is rising at a rate higher than inflation. This raises questions as to the best allocation of resources. Will the costs for security be higher if individuals can distribute leaflets and engage in confrontational debates all over campus rather than in one defined and more easily secured location? What about large gatherings and demonstrations? Would it be easier and less costly to provide for security if these events are confined to one area of campus? What about the likelihood of large numbers of dropped leaflets everywhere if leafleting is permitted all over campus? Will clean-up costs be higher? Will slip-and-fall accidents occur if students or others slip on glossy leaflets dropped on staircases or elsewhere? It will be costly for the university to quickly dispatch workers to clean up large quantities of dropped leaflets to prevent such occurrences. Of course, if someone is injured because the dropped leaflets were not picked up quickly enough, the university could face liability for the victim\u27s injuries, thus creating another potential financial drain on an already decimated university budget. What about noise and disruption? The concept of campus speech zones developed during the turbulent years of the 1960s and early 1970s so that campus unrest would not interfere with classes, study areas, student dormitory life, and the general business operations of universities. These concerns still exist today.
As if the foregoing was not enough, issues beyond day-to-day operations demand the time and attention of university administrators. The leaders of public universities engage constantly in efforts to obtain adequate funding from legislatures, to raise funds from donors, and to obtain grants from foundations and the government. Higher education institutions must also constantly review, revise, expand, and sometimes eliminate programs, based on factors such as community and industry needs, enrollment, and funding. Additionally, whether they are willing to admit it or not, American institutions of post-secondary education are in competition with entities offering the corporate training model of education. When confronted by these daily dilemmas, it is no wonder that some university officials feel campus speech zones are the least of their worries. So what is a university to do? Despite the demands of time, the campus speech zone issue deserves, and in fact requires, attention. Freedom of speech is inextricably connected with the essential character and purpose of the university as well as constituting one of the most treasured values of American society. Effective analysis is best accomplished when this topic receives the time and focused attention necessary to the task, without the distractions, pressure, and hype that have become common in First Amendment controversies involving universities. Without question, a public university\u27s campus speech zone policy must comply with First Amendment standards. Adherence to constitutional requirements is as essential to the process of drafting a university speech zone regulation as meeting the university\u27s other objectives. Scholarly writing on campus speech issues focuses, understandably, on constitutional issues. The only article specifically devoted to campus speech zones found by this author analyzes the topic primarily upon First Amendment public forum doctrine. Likewise, case law on campus speech zones focuses almost solely on the First Amendment aspects of the issue. Such case law, as well as case law on student free speech in higher education in general, ma, make mention of universities as the marketplace of ideas, but constitutional concerns, particularly the First Amendment, remain the focal point. Court decisions determine whether a specific university\u27s particular iteration of a campus speech zone policy is constitutional, and thus provide guidance for the drafting and design of campus speech zone regulations. They do little to help universities decide a more basic question, whether they should utilize campus speech zones at all. This crucial question has not received adequate attention. Discussion of campus speech zones is largely subsumed by discussion of student speech issues in general, and scholarly legal writing on student speech issues continues to keep constitutional issues, particularly First Amendment analysis, in the spotlight. The importance of compliance with constitutional standards is undisputable; it is absolutely mandatory and, more importantly, essential to the American way of life. However, in regards to campus speech zones, we ought not limit the discussion to constitutionality. Even if a campus speech zone regulation is properly formulated, well-drafted, supported by adequate substantial government interests, and otherwise constitutional, the analysis remains incomplete. There still remains an inadequately examined underlying question: Should a university utilize campus speech zones, and if so, how? This article focuses on that largely ignored, but fundamental question. A new analytic framework is necessary to examine campus speech zones. Specifically, decision-making with respect to these zones should be through a two-step process. Step one asks the fundamental policy questions: whether the particular university should utilize campus speech zones, and if so, how. Step two consists of designing and drafting a university campus speech zone policy that adheres to all constitutional requirements. The process should work as follows. If the answer to the essential step one question is yes, then the university should utilize that information to decide what general variety of campus speech zones meets its important interests. Only then should the decision-making progress to step two. At step two, the university designs its specific formulation of campus speech zones and drafts its regulations, ensuring that the regulations meet all constitutional requirements while also avoiding constitutional failings. At this point, the zones, as first envisioned at step one, may have to be fine-tuned to meet both constitutional standards and university needs. It is critical that the fundamental step one question be answered first. Step one enables a university to discover its true purposes for utilizing campus speech zones, to verify that those purposes align with the character of universities and the important current issues affecting the specific university, and to confirm that its campus speech zones pass constitutional muster. Although other scholars have examined step two, a comprehensive analysis of step one is surely needed. This article proposes this new analytic model and takes on the challenge of examining the essential policy question that constitutes step one. Every university is unique; therefore, no universally applicable answer to the step one question is possible. Each university presently employing or considering using campus speech zones should undertake a thorough step one analysis specific to its own unique institution. This article does not attempt to provide a one-size-fits-all answer to a question for which no single answer exists. Rather, it creates a framework, then carries out a comprehensive analysis of that framework to serve as a guide to universities as they undertake step one and examine the fundamental question of whether their university should utilize campus speech zones, and if so, how. The Introduction to this article outlines the problem of campus speech zones. It identifies that an essential question, namely, whether or not a university should use campus speech zones, has been lost amid the constitutional discussion in prior writings examining free speech on campus. Because there is no single, simple answer to this question, each institution must perform its own analysis. Next, Part II identifies the proposed analytic framework. Part III provides background information. This section describes the demise of the traditional in loco parentis philosophy, students\u27 attainment of basic civil rights in their relationship with their university, and basic concepts of First Amendment law necessary to the following discussion. Part III also provides background detail on several current high profile problems impacting universities. Part IV builds the framework for analysis, then undertakes a comprehensive analysis based on that framework. As already stated, this article does not attempt to provide a single answer applicable to all universities. Rather, it provides and analyzes the framework within which each university can make its own complex, individualized analysis. As a result, this article provides a thorough, much needed examination of a fundamental policy question that previously has been obscured. Finally, Part V consists of a summary conclusion of the work
Rights and Their Limits: the Constitution for Europe in International and Comparative Legal Perspective
No full textIn the 2004 Treaty Establishing a Constitution for Europe,\u27 the European Union (EU) took a bold step toward integrating the Continent. A key component of this enterprise is Part II of the Treaty, the Charter of Fundamental Rights. It establishes for the first time a detailed system of legal defense shields for citizens of the Union against the exercise of Union power. Whether the European Constitution is seen as just a tidying-up exercise or a blueprint for a European super-state, it has been a thorny issue to tackle. It intensifies the process of integration while, at the same time, extending it through the accession of new members in May 2004. Before EU members agreed upon a final text, constitution-making for Europe encountered serious difficulties over the issue of representation of certain Member States in decision-making processes. On June 18, 2004, Mr. Bertie Ahem, the Irish Prime Minister and the President of the European Council of the EU at that time, announced the finalization of the Constitution, commenting that you\u27ll get a few generations out of it. This article will focus on the concept of rights under the new Constitution, especially its innovative part, the Charter of Fundamental Rights, and explore the approach taken to limit these rights. This article also places this discussion within the context of fundamental rights in general, starting with the assumption that the legal effect of a right cannot be assessed properly by only ascertaining the definition of its substantive scope. The limitations on a right are as important as its scope in determining its legal content, as virtually no right is absolute in light of the need to balance individual interests and the requirements of community life. Since the very first formulations of human and civil rights instruments, jurists have had to interpret the limits on those rights. For example, can domestic constitutional rights, which can be limited by law, be made legally meaningless by a domestic legislature? Can international guarantees be outmaneuvered by domestic measures in the case of a right guaranteed only through, or within the confines of, national legislation? Thus, the doctrine of limitations on rights arose within the context of the general doctrine of fundamental rights. Particular guarantees of rights are tethered to the context and text of the specific document embodying both rights and limits. Still, the various national, regional, and universal guarantees have cross-fertilized each other. In the context of the EU, limits to Union power, in the absence of a Union rights catalog, were drawn up in close approximation to national rights catalogs and the regional human rights instrument-the European Convention on Human Rights (ECHR). So were the limits to those limits. Section 36 of Article 52 of the Charter of Fundamental Rights of the European Union, now Article 11-112 of the Constitution, reflects this heritage by attempting to harmonize the interpretation of Charter rights with the jurisprudence of rights under the ECHR and common domestic constitutional traditions. Section 1 of this general provision on the Charter\u27s limitation of rights, refers to categories of limitations derived from both domestic constitutions and the ECHR and other rights catalogs, such as the United Nations\u27 International Covenant on Civil and Political Rights (ICCPR). It is apposite, therefore, to present first the nature of this new Europe, as envisioned and defined by the new Constitution. This article will then delimit the rights under the Constitution by reference to (1) the history of rights, (2) important domestic traditions-in particular, the U.S. Bill of Rights and the German Basic Law, and (3) international guarantees and their limits, such as those established universally under the ICCPR and regionally under the ECHR. Finally, this article will evaluate the limits drawn in the Charter of Fundamental Rights. In addition to analyzing the contents of the Charter, this comparative and international legal analysis will allow us to answer the question: Does the Charter do justice to the critical issue of how to properly limit rights
Therapeutic Jurisprudence and the Rehabilitative Role of the Criminal Defense Lawyer
No full textIn the present article, I will identify the potential rehabilitative role of the attorney from the beginning stages-possible diversion, for example through sentencing and even beyond-through conditional or unconditional release, and possible efforts to expunge the criminal record. This article has two principal purposes; first, to call for the explicit recognition of a TJ criminal lawyer, and to provide, in a very sketchy manner, an overview of that role; second, to propose an agenda of research and teaching to foster the development of the rehabilitative role of the criminal lawyer. While much of the proposed research would discuss the rehabilitative potential of applying the current law therapeutically, practitioners and scholars working in this area will also naturally have occasion to consider alternative approaches, resulting in proposals for law reform. The agenda is intended as a warm invitation to several communities, each of which, if so inclined, could contribute mightily to this effort, which ultimately should result in journal articles, practice manuals, anthologies, and texts. The most obvious community consists of involved practitioners and, especially, their academic counterparts, the community of clinical law professors. Law school clinical teaching and scholarship are uniquely suited to address many of the issues raised later in this article. Another relevant community is that of social workers, criminologists, psychologists, and the like, some of whom are connected with law school clinics or are working as practitioner-scholars in the Therapeutic Jurisprudence area. Finally, academics working in Therapeutic Jurisprudence and in criminal law, especially in sentencing and corrections, would be highly valuable partners in this enterprise. So would their students, and a number of the topics raised below might indeed serve as interesting and useful exercises for course papers. It is time, then, to begin to sketch more clearly the role and practice setting of the TJ criminal lawyer, taking into account certain important skills, legally-relevant doctrines, and the kind, content, and timing of certain important conversations with clients. In the effort of constructing an agenda, my approach will be to cite much of the relevant literature, but not generally to synthesize or summarize it in any detail. My main objective is to provide interested others with a jumping-off point, and to pose questions and suggest avenues of future inquiry. The reader will note immediately that the proposed attorney-client relationship bears virtually no resemblance to many shameful systems of indigent defense, where crushing caseloads allow for little client contact and where the only real objective is to secure a decent deal on a plea. But legal clinics need to teach excellence, to push for expanded legal horizons, and to model and point the way to the provision of first-rate legal services. They cannot succumb to mimicking the structural ineffective assistance of counsel exhibited in many public sector defense programs. Indeed, this article ends with a discussion of the structure of legal services, and proposes that very area as one deserving the creative efforts of clinical legal scholarship
From Violence and Victimization to Voice and Validation: Incorporating Therapeutic Jurisprudence in a Children\u27s Law Clinic
No full textThis article discusses our Clinic\u27s Voice Project and examines the application of Therapeutic Jurisprudence principles to the group of foster children who created the Trapped mural: girls who are victims of abuse and who are committed to psychiatric facilities. In their self-expression, an overwhelming number of the girls focused on their experiences of being sexually abused and feeling re-victimized within the psychiatric and legal systems. Unfortunately, [u]nlike most victims of other sexualized violence, the victims of child sexual abuse have had little or no voice, creating a literal as well as figurative absence of narrative about the harm. In this article, I include the voices of the girls who created the Trapped mural and summarize our Voice Project\u27s findings on how the girls\u27 experiences in the child welfare system impacted them. The girls conveyed the trauma of three dimensions of rape that they experienced-the trauma of being sexually abused, the re-traumatization of forced psychiatric treatment, and the further re-traumatization of being rendered voiceless in the legal system that controlled their psychiatric commitment and every aspect of their lives. In incorporating the girls\u27 voices and perspectives in this article, I am heeding Professor Perlin\u27s challenge to those who engage in Therapeutic Jurisprudence work: It is essential that Therapeutic Jurisprudence incorporate the viewpoints and perspectives of the eventual consumers of mental health services-those who involuntarily and voluntarily enter the mental health system .... The next generation of [T]herapeutic [J]urisprudence scholarship must incorporate these perspectives. Indeed, it is critical for client voices to be incorporated in Therapeutic Jurisprudence scholarship so that client communities can contribute their own perspectives on the therapeutic and anti-therapeutic effects of legal rules and practices that they have experienced. After summarizing the girls\u27 perspectives, this article examines how application of Therapeutic Jurisprudence principles can avoid foster children viewing the law as the girls in the Voice Project viewed it-as a violent field of rape. The article addresses the two core principles of TJ that were desperately sought by the girls: voice and validation. The article discusses how our Clinic students provided voice and validation for a girl in the psychiatric facility who was a client of the Clinic and what we learned about the benefits of applying Therapeutic Jurisprudence principles through legal representation. Additionally, the article examines how our Clinic successfully utilized Therapeutic Jurisprudence arguments in our legal advocacy before the Florida Supreme Court to further our law reform effort to ensure that all foster children receive meaningful due process when facing commitment to psychiatric facilities. Finally, the article addresses the pedagogical value of incorporating Therapeutic Jurisprudence in clinical legal education and encourages clinicians to establish Voice Projects within their law schools to enable students and clients to transform the law\u27s potential for violence into the law\u27s potential for healing
Validation through Other Means: How Immigration Clinics Can Give Immigrants a Voice When Bureaucracy Has Left Them Speechless
No full textTo better frame this discussion, I will first describe the immigration process and its anti-therapeutic effects on immigrants in some detail. I will then proceed to discuss the use of community presentations and contextual representation practices to preserve a client\u27s voice and validation in the immigration process. Throughout this article, and more specifically in my conclusion, I will examine how students who understand the need to address psycho-legal soft spots naturally gravitate to client-centered representation, thereby becoming empathetic and competent practitioners
Adult Sexual Desire and the Best Interest of the Child
No full textIn Lofton v. Secretary of the Department of Children and Family Services, the United States Court of Appeals for the 11th Circuit sustained Florida\u27s legislative decision to restrict adoption to heterosexual married couples or unmarried individuals not engaged in homosexual conduct. The court rejected claims by prospective homosexual parents that Florida had impermissibly intruded upon their familial privacy rights, unconstitutionally burdened their right to private sexual intimacy, and - by treating homosexual applicants for adoption differently than heterosexual applicants - transgressed the commands of the Equal Protection Clause. The court properly rejected these contentions. All of the plaintiffs\u27 claims ultimately rest upon the submission that consensual private sexual intimacy establishes - as a matter of constitutional law - an entitlement to every legislative and social right historically conferred on fathers, mothers and/or married couples. The recently discovered constitutional protection for the expression and exercise of adult sexual desire, however, does not sweep so broadly. While government may no longer criminally proscribe certain sexual practices between consenting adults, this right of sexual partners to be left alone does not mandate judicial bestowal of all social rights, benefits and status desired by the sexual partners. The state\u27s constitutional obligation not to intrude upon consensual sexual relationships, in short, does not impose any obligation to establish or recognize parent/child relationships unrelated to those private intimacies. Unlike the right to procreate, which is neither created by government action nor subject to intrusive regulatory oversight, adoption is entirely a creature of state law. Through the adoption process, the state - acting in loco parentis for children who do not have a biological relationship with either one or both of their natural parents - shoulders (as Lofton recognized) the high duty of determining what adoptive home environments will best serve all aspects of the child\u27s growth and development. Adult sexual desire does not control, nor can it supplant, the state\u27s reasoned evaluation of (and preference for) family forms that, on balance, are most likely to further the best interests of an adoptive child
Family Norms in Adoption Law: Safeguarding the Best Interests of the Adopted Child
No full textBecause a number of negative circumstances or outcomes correlate with non-conjugal couple household structures and alternative sexualities, 6 lowering the high standard for adoptive parents that has been the hallmark of best adoption practices in the U.S. may not be the best option for addressing the needs of children whose biological parents cannot care for them