STU Scholarly Works (St. Thomas University)
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Police Arbitration and the Public Interest
No full textArbitrators have been blamed for promoting unaccountable policing by reversing discipline in proven misconduct cases. Although studies have shown great success rates for cops in arbitration, they do not address the legal causes for that success. This paper identifies three factors that permit arbitrators to lawfully rule for rogue officers. The first factor is arbitral failure to incorporate the public interest when assessing discipline because they are not legally obliged to do so. The second is the procedural discretion arbitrators have to exclude incriminating evidence under the labor contract. And the third is Supreme Court doctrine that limits the ability of judges to vacate arbitral awards that are repugnant to justice. The article shows that the rules that facilitate arbitral unaccountability to the public were created for the private sector workplace where the public’s interest is not implicated when a worker violates public laws or workplace rules. Wholesale adoption of private sector arbitration rules in the context of police discipline has insulated cops who present a danger to the communities they serve and the departments they represent. These private sector rules allow arbitrators to make disciplinary decisions grounded in optimistic predictions about officers’ psychological suitability for the job, although they are not qualified to make such assessments. Because the legal landscape for enforcing police arbitration decisions is unsuited to protecting the public from bad officers, the article argues for removal of arbitrators from the disciplinary process. Adjudicated cases show that the nuances of policing, and the difficulties of knowing police officers’ mental states, require that publicly accountable individuals have final authority for police discipline
The Illusory Precedent of McGrain v. Daugherty
No full textOn May 12, 2020, the Supreme Court heard arguments in the consolidated cases of Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, which concerned whether standing committees of Congress have constitutional and statutory authority to enforce subpoenas against private corporations to obtain the President’s non-government records. From the perspectives of the congressional plaintiffs and the respective lower courts agreeing with their arguments, this question is easily answered. In 1927, the Supreme Court held in McGrain v. Daugherty that the Necessary and Proper Clause of Article I, § 8 empowered Congress, through its committees, to conduct investigations and compel compliance with its subpoenas as a necessary auxiliary of Congress’s need for information to legislate effectively. Consistent with that approach, the House Oversight and Reform Committee (Mazars) and the House Intelligence and House Financial Services committees (Deutsche Bank) sought to enforce subpoenas consistent with their legislative jurisdiction. Even the Office of Legal Counsel at the Department of Justice concedes that McGrain empowers duly authorized congressional committees to enforce their oversight requests so long as those requests are for a legitimate legislative purpose. Given the Supreme Court\u27s consideration of McGrain in both Mazars and Deutsche Bank, as well as the number of current interbranch disputes before the D.C. Circuit likely to percolate up before the Court, this essay seeks to dispel the notion that McGrain supports the doctrine of judicial enforcement of the congressional oversight power
Race and Housing: The Great Betrayal Revisited and Repaired. Two Proven Approaches and a New Proposal for Low-Income Homeownership
No full textA promise made by Abraham Lincoln to the former enslaved persons was broken. That promise—land ownership—was one of the goals of Reconstruction. Land ownership represented freedom, a tangible stake in America, opportunity, and a way to keep and build upon this foundation through work. It was to be accomplished through the Southern Homestead Act of 1866,1 which was enacted in response to a plea from Southern Black ministers that freed slaves be given land to work that would result in the accumulation of “generational wealth.” The cancellation and rescission of “40 acres and a mule” for the newly freed people has reverberated down the years to today’s income inequality and Black Lives Matter movements. The issues of housing and poverty are inextricably linked. Housing is not merely a roof over one’s head and a place to sleep. It intersects with access to health care, job opportunities, personal safety, interaction with the criminal justice system, and high-quality education for children. It is a path to a better life. It is a necessity. Racial unrest once again has gotten everyone’s attention. Let it motivate us to implement practical solutions—housing solutions that address poverty and the attendant lack of opportunity. We can do this by harnessing what we have learned from past affordable housing successes, combined with what we have learned from psychology, social science, and related legal theory as to what enables human beings to thrive. This essay first will focus on the most serious problems faced by Black low income renters, including those with Section 8 vouchers: virtually all the rental alternatives create a perpetual cycle of poverty with no way out. Next, this paper will describe the highly adverse human impacts that being locked into permanent renter status, with no effective choices, has on some families. It will then contrast this situation with the psychological benefits to all families of having viable self-determined choices to improve their futures. The essay will then touch on legal theory supporting such affordable housing alternatives. Next, the essay will examine two affordable housing programs that, in addition to Habitat for Humanity, have succeeded in lifting a subset of lower income families out of dependence and poverty in Miami-Dade County, Florida. Interestingly, these successful programs evidence the human flourishing derived from autonomy as described in psychological theory. Finally, this essay will propose a new model that blends the best of Section 8 with the two affordable housing models described herein. It, too, is grounded in principles that empower families to set and achieve goals of their own choosing
Teaching Law Online: Yesterday and Today, But Tomorrow Never Knows
No full textAlthough the role of online in legal education has grown over the past several decades, online teaching became a lifeline in Spring 2020 when the COVID-19 pandemic shuttered classrooms nationwide. Online teaching is now necessary, but also problematic. Schools and teachers therefore need to carefully consider how to make effective use of online tools and techniques. This essay reflects on the author\u27s career-long experiences in online law teaching, much of which predates the COVID-19 pandemic. With a little help from a Beatles song or two, the essay reflects the yesterday, today, and tomorrow of online legal education. It closes with that most scholarly of prescriptions: The Beatles\u27 Top Ten hits relevant to teaching online
Betraying The American Public\u27s Trust and Police Accountability Interrogations: The Darren Wilson Story
No full textThis paper will be focused on the specific failure by prosecutors to obtain an indictment when Michael Brown (Brown), the victim, was shot by law enforcement and will discuss: (1) systematic racism in the City of Ferguson (Ferguson), and the events leading up to the Darren Wilson (Wilson) case; (2) the specificities of the grand jury proceedings in the Wilson case; and (3) finally, conclude by evaluating how the Wilson case led to no indictment, and how attempting to indict a police officer is completely different
Meek Mill\u27s Trauma: Brutal Policing as an Adverse Childhood Experience
No full textMeek Mill’s life and career have been punctuated by trauma, from his childhood lived on the streets of Philadelphia, through his rise to fame and eventual arrival as one of hip hop’s household names. his 2018 track Trauma, Meek Mill describes, in revealing prose, just how the traumatic experiences he endured personally impacted and harmed him. He also embodies a role as narrator in describing the same traumas and harms that impact the daily lives of countless similarly situated young Black people in the United States. As a child, Mill’s lived experience was one of pervasive poverty and fear, as the world surrounding him consisted of large-scale poverty, addiction, crime, violence, and death. As a young man—at just 19 years of age—he was beaten by police, wrongfully arrested and incarcerated, and ultimately convicted of crimes that he did not commit, becoming another statistic as a young Black man swallowed by the American criminal justice system. Meek’s story, lyrics and contributions to hip hop illuminate the Black experience with law enforcement. His personal involvements provide a powerful narrative for exactly how a racially biased criminal justice system perpetrates a trauma that extends far greater than the law has traditionally recognized. This article highlights this narrative through the lens that Meek Mill provides because of his current prominence in hip hop and the importance of his narrative claims. Despite his success in achieving the status of a true hip hop icon, Meek Mill suffered the kind of childhood adversity and trauma that emerging health care research indicates leads to debilitating health outcomes in adulthood.Powerful health studies conducted over the past two decades have uncovered the startling impact of Adverse Childhood Experiences (“ACEs”). ACEs are traumatic events that occur in childhood, ranging from abuse and neglect to other traumatic experiences derived from household and community dysfunction. Today, ACEs are generally placed by health researchers into seven to ten categories of childhood adversities ranging from sexual, physical and emotional abuse to the incarceration of a family member, living with someone who abuses alcohol or drugs and poverty, community violence and homelessness. These identified categories of trauma, although not fully understood or grasped as late as the 1990s, were known to occur in the lives of children all over the United States; however, the overall impact of childhood trauma on an individual’s long term health outcomes was only first measured in the now famous CDC-Kaiser Permanente ACE study. The findings of this study shook the health care world, forever altering the understanding of the link between childhood trauma and adult health outcomes. These links pushed researchers to look more deeply into the ultimate impact of traumatic childhood experiences on overall adult health. The groundbreaking study concluded that the more trauma a child experiences, the fewer years that child would live as an adult. In fact, in a 2009 study, CDC researchers determined that exposure to childhood trauma literally shortens an individual’s lifespan. On average, a person with six or more ACEs died twenty years earlier than a person that had experienced no Adverse Childhood Experiences.This reality, that traumatic childhood experiences are directly and inextricably linked to negative health outcomes, is now widely recognized in the public health and clinical literature. Dr. Robert Block, former President of the American Academy of Pediatrics, has warned that “[a]dverse childhood experiences are the single greatest unaddressed public health threat facing our nation today.” More recently, this literature has begun to explore the connection between trauma and race, outlining how structural violence and historical trauma—particularly violence and discrimination experienced by Black, indigenous, and persons of color—is often experienced both at the individual and community levels. Such work has focused on improving economic opportunities for trauma- stricken communities, improving the physical/built environment, and supporting the development of healthy social-cultural environments. The prevailing framework for addressing the ACEs crisis has been a medical model focused on interventions for individual survivors and communities rather than addressing the glaring systemic issues that directly contribute to the vast majority of the trauma suffered by those communities and the individuals and families that inhabit them. Largely and undeniably absent from the body of work on childhood trauma, and the proposed solutions to confronting and rectifying its deadly impact, is the exploration of how the American legal and justice systems, from municipal law enforcement to the appellate courts, stands at the epicenter of the current crisis.Each of the recognized categories of ACEs listed in medical screening instruments used by physicians to identity trauma have a direct nexus to the justice system. If we as a society are committed to treating ACEs as the public health crisis that they are, it is incumbent upon us to examine where and how our legal system is complicit in perpetuating trauma upon minority children. In addition, we need to consider how it can intervene—both at the individual and structural levels—to eliminate practices that contribute to multi-generational cycles of trauma and work to equip those with justice-system involvement to succeed and build the resilience necessary to heal minority individuals and communities who have been stricken by trauma and its life-long negative consequences. Indeed it is the responsibility of our justice system, as a major contributor to so-called “social determinants of health.”Meek Mill, in his intimate autobiographical tracks of Trauma, Oodles O’Noodles Babies, and Otherside of America, describes experiencing not just several instances of childhood trauma as identified by the CDC-Kaiser Permanente study, but as a teenager, he suffered additional cruel trauma at the hands of U.S. police and a criminal justice system that wrongly imprisoned and unfairly positioned him in a revolving door between probation and prison. The data tells us that the trauma Meek experienced as a child and teenager statistically predicts a poorer life expectancy for him than those individuals that experienced no trauma or little trauma as a child and youth. Because of the anti-Black culture of policing in America, and because of the deep systemic racism that permeates the criminal justice system, simple exposure to U.S. policing and its courts should qualify as an Adverse Childhood Experience for Black and minority children—one that contributes to harmful adult outcomes, including a shortened life expectancy. Mill’s personal childhood trauma as described in his music carefully extrapolates the ways that American policing and the criminal justice system literally traumatized and endangered his young Black life, as it does so many Black children.This article begins in Section I by providing an in-depth examination of ACEs research, including how the groundbreaking original ACE study discovered the direct link between high ACE scores and poor health outcomes and the prevalence of ACEs in the Black community. It then turns, in Section II, to a brief discussion of the broad ACE category of social disadvantage, and how a child growing up in an environment built on a foundation of poverty and violence will inevitably have more trauma, more ACEs, and be harmed through his or her experience of toxic stress. Section III will provide an overview of anti-Black policing and how law enforcement, as currently constituted, traumatizes minority communities and youth. Section IV explains how criminal charging, jailing, and sentencing traditions have disproportionately targeted Black men, contributing to the trauma that their children and families experience with the loss of a loved one to death or incarceration. The article next argues that minority youth exposure to U.S. law enforcement agents and the justice system at large functions as an ACE for youth of color in a way that is simply not present for non-minority youth and, as such, should be added to the list of ACEs that are formally recognized by public health officials. Finally, the article concludes with how Meek Mill himself is seeking to reform a system rife with debilitating trauma. Throughout each section, Meek Mill, and the raw lyrics from some of his most personal tracks, will serve as an illustration, and example, of how social disadvantage, police misconduct and brutality, and the American criminal justice system at large, cause harmful and lifelong trauma for Black Americans
A Christian Response to Laws that Require Immoral Acts
No full textThis article examines five cases which involve laws in our nation that presently require immoral action and then concludes with a sixth case in which the U.S. Supreme Court recently invalidated the application of such a law to a particular contract but left open a way still to use the law to impose immoral action. In each of the six cases, the article explains the evil of the law as a transgression of one of the commandments, which, if one is to remain moral, requires civil disobedience. It then explains how the person who follows the commandment and suffers the negative fallout from the consequences of civil disobedience nevertheless is called by Christ to go beyond and be perfect by following the beatitudes. Although more than one beatitude may be relevant in each case, this article examines only one, and a different one at that, for each case. The purpose of the article is to illustrate by these six examples how the beatitudes operate on a practical basis in the concrete circumstances of everyday life to satisfy Christ’s call to perfection
Eradicating Human Trafficking: Culture, Law and Policy - Foreword
No full textBook: Eradicating Human Trafficking: Culture, Law and Policy
With over 40 million people still enslaved around the world, this book takes a closer look at the role of culture in society and how certain practices, beliefs or behaviors may be fueling human trafficking beyond what the law can curtail. The study reveals cultural elements that conflict with existing anti-human trafficking laws across three case studies (United States, India and Costa Rica). There is no simple answer or a single solution to stop or significantly reduce the crime, but a pragmatic, multi-disciplinary, and human rights approach to the problem may bring to light that, efforts to curtail human trafficking will be in vain if we rely on law alone. A fundamental shift in culture is imperative.https://scholarship.stu.edu/faculty_book_chapters/1000/thumbnail.jp
Front Matter
No full textFront Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 16 (2021)
Schuette and Affirmative Action: Why There are Limits to what a Majority of the People May Do
No full textThis article will be divided as follows: Part I will examine American legislative history and its failure to end discrimination in fact. Part II will analyze the claims of the States and the people regarding affirmative action. Part III will explore past trends in judicial decisions and their conditioning factors, including political party platforms and United States Supreme Court appointments. Part IV will evaluate changes in those conditioning factors that may alter future decisions, including the best- and worstcase scenarios. Lastly, Part V will provide recommendations on the best approach to remediate past discriminations