STU Scholarly Works (St. Thomas University)
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English as a Second Language - Or Why Lawyers Can\u27t Write
No full textFor more than thirty years I\u27ve spent a lot of time reading bad writing. By bad writing, I mean writing that fails of its essential purpose-so flawed in concept or execution that it can hardly inform, much less persuade. The writing is the sort that lawyers are routinely expected to produce: briefs, judicial opinions, essays dealing with law-related subjects, and the like. What I see, for the most part, is the writing of second- and third-year law students, the vast majority of whom graduate and enter upon a lifetime career as lawyers.\u27 They take with them for tomorrow the writing skills they possess today, and those skills, to put it mildly, are poor. If this experiential diagnosis is accurate, why the ineptness? And can anything be done about it
Ninety Miles from Freedom - The Constitutional Rights of the Guantanamo Bay Detainees
No full textThis article concludes that, based on previous interpretations of the reach of the Constitution beyond U.S. borders, only the Fifth Amendment right to Due Process applies to Guantanamo Bay detainees, and that any other constitutional rights, such as the right to counsel or confrontation, must arise from the Due Process clause, rather than the independent rights protected by the Sixth Amendment. Part Two of this article will take an in-depth look at the decisions in Khalid and In re Guantanamo Detainee Cases, examining their reasoning and the similarities and differences in their conclusions. It will focus exclusively on the constitutional claims of the petitioners, and parse the legal reasoning utilized by Judges Leon and Green in their decisions. Part Three begins with an examination of the historical reach of the Constitution beyond the borders of the United States, focusing on the differences between the treatment of citizens and noncitizens, as well as the distinction between U.S. territories and foreign countries. During the course of this examination, it will also focus on several historical cases, spanning from the 1890\u27s through the Cold War, including the two major military tribunal cases that arose out of World War II: Ex parte Quirin and Johnson v. Eisentrager. It then concludes with the all-important question of the status of Guantanamo Bay. Finally, Part Four moves on to the central question of which rights apply to the detainees held at Guantanamo Bay. It examines the Fifth Amendment right to Due Process and the Sixth Amendment rights to counsel and the right to be present during the entire course of one\u27s hearing
Essay: A Search for Reason in Fairy Tales
No full textA fairy tale: Once upon at time (not so very long ago), in a land (not so far away) lived a beautiful queen (well, actually a runner up ) with a golden voice. The beautiful queen reined over her people and sang of sunshine. Some of the queen\u27s subjects had felt that they were not treated fairly by the laws of the land and sought to have their unfair treatment prohibited. Apparently, this caused the queen to develop a fear and hatred for these subjects. These subjects had done nothing to the queen. Yet, the queen made it her mission to rid the land of them. The queen convinced the ministers to pass laws that sought to punish and exclude this group of subjects. The queen believed that she could make these subjects disappear by decreeing them away. Hysteria swept the land. The queen\u27s fears became amplified and rippled throughout the land. However, as time went by, some leaders began to see that the queen was misguided. The people rose up and exiled the queen. She was no longer able to sing of sunshine. The queen became powerless and unimportant. Yet, in the land, lingered some of the laws the queen had caused the ministers to pass. These laws, upon reexamination, were predicated upon the irrational fear and hatred of the queen, not grounded in reason. And, the story should say that the laws were done away with and that reason was restored to the land. But, that is not the whole tale. For, it appears that the queen\u27s irrationality persists.\u2
Corfield v. Coryell and the Privileges and Immunities of American Citizenship
No full textJustice Bushrod Washington\u27s famous discussion in Corfield v. Coryell\u27 of the meaning of the Privileges and Immunities Clause is, as Charles Fairman remarked, certainly one of the most famous pronouncements ever made in a circuit court. The fame of Washington\u27s decision is welldeserved, for it was long considered the authoritative interpretation of the Privileges and Immunities Clause. His discussion of the clause was one of the first offered by a federal court. He was surely capable of undertaking such initiatory interpretation, as he was no doubt aware of the original understanding of the clause. He had studied law with James Wilson (whom he replaced on the Supreme Court in 1798) and had been a member of the Virginia ratifying convention, where he had voted with James Madison, John Marshall, and others in favor of the Constitution. In fact, his pronouncement in Corfield represents one of the few elaborate interpretations of the Privileges and Immunities Clause left by anyone who participated in the adoption of the Constitution. Washington\u27s Corfield opinion not only served as a leading interpretive authority for the Privileges and Immunities Clause, but also greatly influenced the drafting of the later Privileges or Immunities Clause of the Fourteenth Amendment. In the minds of the drafters of that Amendment, Corfield provided the most authoritative interpretation of the expression privileges and immunities of citizens. Indeed, Washington\u27s pronouncement was the legal authority to which the congressional framers most frequently appealed in describing the constitutional privileges of citizenship. Most notably, while introducing the proposed Amendment to the Senate, Jacob Howard explained the import of the privileges and immunities of citizens secured therein by means of a lengthy quotation from Corfield. Washington\u27s exposition of privileges and immunities of citizens is, therefore, essential to American constitutional studies, for it provides evidence crucial to any inquiry into the roots of two different clauses of the Constitution: the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment. Through Corfield, Washington both became the leading judicial expounder of the former provision and posthumously influenced the drafting of the latter. Surely, if one is to understand the history of the privileges of citizenship, as guaranteed in both the original and the amended Constitution, one must understand Corfield. Despite the compelling significance of the case, legal scholars have largely failed to give Corfield much attention. Even in studies devoted to the Privileges and Immunities Clause, discussions of the case generally cover no more than a few pages. In sum, Corfield v. Coryell remains a famous, important, but largely unexamined constitutional case. It is the purpose of this Note to provide, for the first time, a close analysis of Justice Washington\u27s famous remarks. After surveying the scholarly treatment of Corfield in Part I, I begin the study with a sketch of the understanding of the Privileges and Immunities Clause that prevailed before Corfield. In Part II, I briefly examine the Framers\u27 understanding of the provision; in Part III, I discuss some of the important questions that the Framers left unanswered; and, in Part IV, I survey the ways in which courts grappled with the clause prior to the Corfield decision. In Part V, the longest part, I present a detailed analysis of Justice Washington\u27s opinion. In the concluding part, I consider in what way this opinion sheds light on the original understanding of the Privileges or Immunities Clause of the Fourteenth Amendment
Demographic Change and the Protection of Minorities
No full textBook: Globaler Demographischer Wandel und Schutz Der Menschenrechte
The world\u27s population was 20.1 billion people at the beginning of the 6th century, rose to six billion at the end of the 2050th century and will have grown to 8.9 billion in 2050, according to the UN\u27s latest forecast. These developments give rise to numerous problems, especially since the strongest population growth will take place in countries where economic development is stagnating or even declining. The conflicts to be expected are often described with the term cut-throat competition . It is expected that there will be increased migration worldwide, both voluntarily by economic migrants and also involuntarily by displacement. According to past experience, ethnic and religious minorities in particular will be exposed to displacement. In the worst case, they are even threatened with physical annihilation. Waves of migration can lead to the destabilisation of the countries or regions affected by them. Problems also arise from the fact that there are already binding regulations on birth control in individual countries. It should also be noted that by the number of people aged sixty and over will more than triple. The resulting problems, which have been largely ignored, are dealt with in this conference proceedings.https://scholarship.stu.edu/faculty_book_chapters/1027/thumbnail.jp
Fields of Hope, Fields of Despair: Legisprudential and Historic Perspectives on the AgJobs Bill of 2003
No full textIn this Article, Professor Lauren Gilbert examines the unique story of the Agricultural Job Opportunity, Benefits and Security Act of 2003 (AgJobs), first in its historical context and then as a case study for applying various legisprudential theories. Professor Gilbert first provides an historic overview of guest-worker programs in America, a detailed analysis of the history of the AgJobs negotiations, and a study of Congressional developments following the bill\u27s introduction in two different Congresses. She follows this with a review of legisprudence literature and a discussion on how the various theories, including pluralism, public choice theory, institutionalist theory, and critical legal theory, while helpful in understanding why AgJobs failed, are each inadequate in explaining the whole story. She then proposes a framework of analysis entitled \u27biennial factionalism\u27 to explain how a bill based on an historic alliance between traditional adversaries that enjoyed broad support among legislators in the Senate was still unable to achieve enactment. Professor Gilbert concludes that biennial factionalism, which depends on the dynamic interplay among political and non-governmental actors and the cyclical nature of the legislative process, should give AgJobs advocates reason to be optimistic for eventual success
Heart and Soul: A New Rhythm for Clinical Externships
No full textThe message of Therapeutic Jurisprudence is simple - focus on emotional life and psychological well-being and practice law as a healing profession - but the application of Therapeutic Jurisprudence to clinical teaching can have far ranging results. Lawyers trained to be professionals have not been trained in how to respond to the anxiety, hurt feelings, and other emotions ... , Law students arriving today in our clinical education settings require extra attention to the development of interpersonal skills for a variety of reasons. This article explores the concepts and development of Therapeutic Jurisprudence and outlines the benefits derived from incorporating it in a direct and thoughtful manner into the teaching of an extern law school clinical setting. Therapeutic Jurisprudence can provide structure to the extern class requirement and the clinical professor can approach teaching skills using it as the framework to unify the overall methodology of an extern clinic. Specifically, Therapeutic Jurisprudence can add value to the self-reflective journal assignments of clinical extern students, and the technique of rewinding will enhance the educational significance of the clinical experience
Must We Bankrupt the Spirit Also: The Benefits of Incorporating Therapeutic Jurisprudence into Law School Bankruptcy Assistance Programs
No full textThis paper will examine the psychological effects associated with filing for consumer bankruptcy and techniques that can be learned by law students and young lawyers to help soften the blow for those who will inevitably experience those effects. First, the progression of bankruptcy will be discussed, tracking changes from its origins to modem times and the effect those changes may have had on those attempting to take advantage of the system\u27s benefits. Second, the actual process of filing for bankruptcy will be examined, pointing out the aspects that cause damage to an individual\u27s mental health. Third, this paper will analyze the labeling issue presented when society becomes aware of the fiscal troubles of individuals, focusing on the changes that occur to both the way society perceives these individuals and the way the individuals view themselves. Finally, the crux of the article will explore the importance of lawyers\u27 ability to deal with their bankruptcy clients in a therapeutically beneficial way and how law school bankruptcy assistance programs or clinics can be used to implant the requisite mentality into the lawyers of tomorrow in order that they develop a more compassionate approach to the way they conduct the counseling aspect of their practices
Gay and Lesbian Adoption: Banishing the Pied Piper
No full textIn my recent book, Homophobia and the Law, Robert Browning\u27s Pied Piper, the strangest figure with a queer long coat from heal to head, inducts a core chapter, the one on Children. After all, it is this notorious Pied Piper, who absconds with the town\u27s children, leads them through a wondrous portal into the mountain-side cave, and renders their laughter inaudible forever. The Pied Piper has evolved into a menacing conceit that perpetuates discrimination against gay and lesbian couples. It is predicated on an irrational notion that homosexuals will, by coaxing children toward their own sexual orientation, seal them in some cavern of prurient doom
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 18, Issue 1, Fall 2005