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Toward a Common Law of Ecosystem Services
No full textThis speech was presented on October 6, 2005, at St. Thomas University School of Law, as part of the Distinguished Speaker Series program. Professor Alfred Light made introductory remarks
Estates in Land and Future Interests: Problems and Answers, 4th Edition
No full textAs a supplement to any casebook on property or wills, trusts, and estates, this book provides an account of the common law in its present form, plus 449 problems and answers testing the application of the rule to specific situations. For this fourth edition, Makdisi (law, St. Thomas University) and Bogart (law, Chapman University) treat recent modifications to the Rule Against Perpetuities (RAP), including the wait-and-see approach to the RAP, the doctrine of cy pres, and the Uniform Statutory Rule Against Perpetuities.https://scholarship.stu.edu/faculty_books/1022/thumbnail.jp
The Alien Tort Claims Act: A Tool for Repairing Ethically Challenged U.S. Corporations
No full textAny good business person knows the best way to increase profit is to reduce overhead without compromising the quality of the product. With this in mind, many U.S. corporations have established business operations abroad, particularly in lesser developed countries. While lesser developed countries may not be attractive to tourists, they are attractive to industries and corporations for a number of reasons. Leaders of lesser developed countries can offer such corporations inexpensive materials, untapped natural resources, a cheap, yet highly productive, labor force, and there is virtually no regulation of business practices. Oftentimes, the leaders of such regions are just as concerned with maximizing their profits as the corporations, and in an effort to meet this end, they subject their citizens to various individual human rights violations. In America, the Constitution, tort law, and criminal statutes protect against individual human rights violations and provide for civil damages and criminal punishment that deters corporations from engaging in such unethical practices. Internationally, the legal community has created several soft law instruments that seek to protect citizens of countries that do not have legal systems to prevent and deter human rights violations. Additionally, the nature of these instruments addresses relations among the states and does not consider the actions of private actors, such as corporations. However, U.S. corporations doing business in foreign countries may be held accountable under the scarcely used Alien Tort Claims Act ( ATCA ) for contributing to human rights violations abroad. The Alien Tort Claims Act has been in existence, in one form or another, since the founding of America. However, legislative intent is ambiguous, and the Act has never been fully interpreted by the judiciary. Some scholars believe that the framers\u27 intent was to protect the integrity of the country against U.S. citizens who committed wrongs against foreigners abroad. Further, the Supreme Court has only reviewed one case claiming a cause of action under the ATCA,4 leaving the lower courts with virtually no binding precedent. In fact, the lower courts have applied several different legal theories resulting in inconsistent decisions and futile attempts to define the scope and extent of the Act. Perhaps this can be explained best by citing dicta from a case out of the Eleventh Circuit in which Judge Hatchett stated, Congress ... may enact a statute that confers on the federal courts jurisdiction over a particular class of cases while delegating to the courts the task of fashioning remedies that give effect to the federal policies underlying the statute. The courts do not have any uniform measure to adequately fashion such remedies. The ATCA, if given a clear definition with specific application, has tremendous potential to affect U.S. corporations\u27 business dealings abroad. For the first time, an ATCA claim against a U.S. corporation may survive summary judgment, giving the judiciary another opportunity to give the ATCA form and meaning. Doe v. Unocal, a groundbreaking case in the Ninth Circuit Court of Appeals, will soon determine whether or not Unocal, a U.S. corporation, while doing business in Burma, may be held liable under the Alien Tort Claims Act for numerous human rights violations. Unocal, a U.S. owned petroleum company, has contracted with the Burmese government to assist with the development of their oil pipeline project, which will connect Burma (Myanmar) with Thailand. The country of Burma is known for its military state and is notorious for its human rights violations against its own citizens. Unocal initiated business dealings with the government of Burma before the United States took a formal stance against the Burmese government\u27s treatment of their citizens. Therefore, the Unocal-Burmese business relationship is exempt from trade sanctions, which were subsequently implemented. As a result, several nongovernmental organizations ( NGOs ), in conjunction with independent counsel, filed the lawsuit under the theory of tort provided by the ATCA on behalf of the villagers of Burma who have endured such human rights violations as forced labor, rape and murder. The various implications of a judicial decision in favor of the villagers (Doe) with regard to U.S. companies doing business abroad could have a profound effect, particularly on U.S. corporations\u27 freedom to establish operations while at the same time acting responsibly to avoid unethical, illegal practices involving human rights violations. An additional implication involves the inherent environmental cost to undeveloped and underdeveloped countries, who often bow to U.S. business interests. In these lesser developed countries, there are no regulatory protections to ensure reduced exposure to pollutants and the maintenance of the eco-system, which are the most basic survival needs of a community. In order to fully understand the impact that the Doe v. Unocal decision may have on U.S. corporations, it is vital to have a basic understanding of the evolution of international human rights, the history of the Burmese situation, and the actual lawsuit. Furthermore, it will be necessary to examine the legislative history of the ATCA, the various courts\u27 interpretation of the act, and finally the potential effects of a Supreme Court ruling on an ATCA claim
Proportionality between Crimes, Offenses, and Punishments
No full textBlackstone said of the Roman Empire, after it embraced unjust laws, and then the Empire Fell. The United States Supreme Court embraces unjust laws and is inconsistent regarding substantive due process and proportionality in criminal cases, and substantive due process and proportionality in civil cases. The Due Process Clause and the Eighth Amendment\u27s prohibition against cruel and unusual punishment require proportionality and fairness, meaning that the punishment must fit the crime, and that the penalty must be appropriate to the offense. Throughout a long history of jurisprudence, the Supreme Court has developed or embraced two varying theories of due process or proportionality in criminal and civil cases. The Supreme Court has vacillated between recognizing and not recognizing a principle or theory of proportionality through the Eighth Amendment. Early on, the Supreme Court embraced the logical and just reasoning that crime and punishment required proportionality, and the Court followed that logical and just rationale until fairly recently. The purpose of this essay is to examine key Supreme Court decisions regarding the Due Process Clause, proportionality, and the Eighth Amendment\u27s prohibition against cruel and unusual punishment, clarify where the Supreme Court has gone wrong, and discuss what the Supreme Court must do to restore a consistent and just theory of due process and proportionality
Gore\u27s Metamorphosis in State Farm v. Campbell: When Guideposts Make a Detour
No full textThis paper discusses the significance of State Farm v. Campbell and how it removes what little effectiveness punitive damage awards were left with after Leatherman.1 Part II briefly explores the past of punitive damages and explains the modem jurisprudence of punitive damages in America. Part III sets forth State Farm v. Campbell. Part IV, Section A argues that State Farm has removed the deterrence function from punitive damages because the Court has given corporations all the tools they need to make an effective cost/benefit analysis. Furthermore, State Farm has removed the punishment function from punitive damages because it has instituted a ratio system without thought to an optimal level of deterrence. Part IV, Section B explores whether and when a state has an interest in punishing unlawful out-of-state conduct and attempts to provide a solution to that question, which has been left unanswered by the Court
Freedom from Fear: Prosecuting the Iraqi Regime for the Use of Chemical Weapons
No full textThis paper will introduce the Iraqi regime and explore its use of chemical weapons against Iran during the Iran-Iraq War and the Kurdish population in northern Iraq. The effect of the Iraqi regime\u27s use of chemical weapons against these individuals was debilitating, irreversible and, in some instances, is just recently coming to light. This paper will also set forth the relevant evidence that will be used in a prosecution of Hussein and his most-wanted associates. A vast array of data has been collected over the past two decades by the United States government, the United Nations and various non-governmental organizations, which can be used in a prosecution. The testimony of live witnesses who are still suffering from the effects of chemical weapons is the most persuasive evidence of the use of chemical weapons. Next, while it seems self-evident that the use of chemical weapons can be categorized as a crime, this paper will discuss the various treaties and international laws that can be used as grounds for prosecuting the Iraqi regime. In addition, this paper will discuss the fora available for such a prosecution, both international and domestic. Finally, this paper will conclude by reiterating that it is critical for the world community, in particular the United States, to prosecute Hussein and his regime for the use of chemical weapons
The Ethnic Greeks of Turkey: The Present Situation of the Greek Minority and Turkey\u27s Human Rights Obligations under International
No full textIn 1923, the Treaty of Lausanne ended the Greek-Turkish war of 1919-1922 and established two distinct minorities in both Greece and Turkey after a convention signed at the same time provided for the compulsory exchanges of populations; about a million and a half Greeks left Turkey for Greece, and about a half-million Turks left Greece for Turkey.\u27 The Convention established that the Greeks of Istanbul, the Aegean islands of Imvros and Tenedos, and the Eastern Orthodox Christian Patriarchate would be allowed to remain in Turkey, while (to ensure a numerical balance) the Turks of Western Thrace were allowed to remain in Greece.2 The Treaty of Lausanne provided for the minority rights of both the Greeks in Turkey and the Turks in Greece and obliged both countries to protect these minorities.3 Eighty years later, it is important to look at the Greek minority and to determine whether Turkey has abided by the Treaty of Lausanne and fulfilled its obligations to protect the Greeks. This paper will examine the Greek minority in Turkey, including how the minority group has been treated, and will determine whether Turkey has abided by the Treaty of Lausanne and other international agreements in protecting the minority. First, this paper will examine the historical context that lead to the establishment of the Greek minority in Turkey. The explanation of the historical context will be followed by an analysis of the Treaty of Lausanne and then the other international human rights agreements signed by Turkey that are designed to protect minorities. After explaining the international protections afforded to minorities, Turkey\u27s Constitution will be examined, since it offers insight into the internal protections that are afforded to minorities. This essay will then take a critical turn, juxtaposing the treatment of the Greeks of Turkey with the rights established by the Treaty of Lausanne, international agreements, and Constitution exist to determine whether Turkey has abided by its promises and obligations to safeguard the Greek minority since Lausanne. In conclusion, this paper will look at any positive steps taken by Turkey in protecting the Greek minority as well as any positive measures taken to ensure that discrimination and ill treatment against the minority ceases
Policy-Oriented Jurisprudence and Human Rights Abuses In Internal Conflict: Toward A World Public Order of Human Dignity
No full textReal problems, like the problem posed, are not amenable to simple solutions. Human rights abuses in internal conflicts usually have roots deep in history and the collective psyche of the individuals and groups involved. To prevent them, the certain prospect of a swift punitive reaction on the international plane might have a useful deterrent effect. But if a violent conflict or genocide is in progress, the expectation of punishment may not by itself be likely to end the conflict. Ironically, it may, prolong the plight of the persecuted, since persecutors may conclude that they have no alternative but to fight to the bitter end to avoid the consequences of their misdeeds. To deal with major incidents of unauthorized coercion and violence, an amnesty for the violators might contribute to a lessening of the toll in blood of a particular ethnic or religious rage. But that, again, might be an incomplete reaction, since the victims of the atrocities committed will not find solace, satisfaction or rehabilitation. Nor will persons who may be pathologically violent be removed from circulation. Where society remains unreconciled, jarred, conflicted- in a state of continual animosity between warring families, clans or ethnic, religious or social groups-- cold war might heat up and erupt at any time in the future even more violently than before. Thus, truth commissions have been established in various contexts at least to shine the light of searching inquiry on situations in which truth has always been the first casualty. Still, such agencies alone might not suffice to bring about social reconciliation and restoration. Neither might bodies set up to mete out justice in the form of civil compensation. International criminal courts may send a message to people elsewhere contemplating massive violations, but they may do nothing to reconstruct the civil society that has been disrupted. The problem posed for this symposium engages a range of goals for the international community, including restoring minimum order where it has been breached, reducing the expectation of violence, reestablishing practices of a productive civil society, eliminating or mitigating the factors that could, in varying combination, reignite particular conflicts, and deterring the occurrence of comparable offending behavior in the society at issue and in others that are watching. Seen in this comprehensive, problem-oriented way, the subject matter discussed includes quite a variety of factual contexts and decision variables. Given the space constraints of this symposium, a thorough treatment of the range of circumstances involving human rights abuses in internal conflict is not feasible, even though our approach is well suited for such a study. In fact, our jurisprudence has yielded a variety of detailed case studies with specific recommendations. While we could have delved into an exacting analysis of one particular context of atrocities, we would have been forced to leave out other important and possibly differing factual and decision contexts. The Holocaust, for example, presents factors and variables at variance from those relevant to Pinochet\u27s Chile, Rwanda, Cambodia or Kosovo. Thus, to be true to the inclusive, nonreductionist goals of our theory of and about law, we will provide the reader with a set of intellectual tools that can be used analytically and prescriptively to deal with any circumstance involving abuses of human rights. We will highlight, and illustrate with examples, the topics and steps of inquiry suggested by our approach as relevant to the symposium and will leave detailed consideration of the multiplicity of factors in any given context to a more expansive forum
International Law in Contemporary Perspective
No full textDesigned as an introduction to international law, this text explores the policies and actors that influence international legal decisions as well as diplomatic agreements relating to human rights, national boundaries and natural resources. Topics covered include the constitutive process, the role of international elites, state responsibility, and jurisdictional competency. This international perspective has applicability to both general international law courses and to courses or seminars with an international perspective on human rights, environmental law, war crimes, international boundaries or other related topics.https://scholarship.stu.edu/faculty_books/1007/thumbnail.jp