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A Faith-Based Perspective on Tort Causation
No full textCausation is among the more difficult concepts dealt with in the law of torts. There is perhaps nothing in the entire field of law which has called forth more disagreement .... Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the best approach. \u27 The law has, however, settled into at least a few basic concepts. There is general agreement that a defendant\u27s act will not be regarded as a cause of a plaintiffs harm unless it is true that but for the defendant\u27s conduct, the plaintiff would not have been injured. This test is often referred to as cause-in-fact. For tort causation to be present, there must also be proximate cause. This involves an inquiry into whether, notwithstanding the presence of cause-infact, there is some policy reason to cut off the putative defendant\u27s liability. Foreseeability has emerged as a primary test of proximate cause. There is, however, another potential perspective on tort causation. Three of the world\u27s major religions (Christianity, Judaism, and Islam) share a common belief in a Supreme Being who is causally active in human affairs. This article attempts to explore what a faith-based view of causation might look like, using Biblical texts as the basis for the analysis
Protecting the Perception of the Public Markets: At What Costs - The Effects of Noisy Withdrawal on the Long Standing Attoney-Corporate Client Relationship
No full textSarbanes-Oxley, this phrase has echoed in the minds of corporate attorneys for almost two years now. Over this period of time, most corporate attorneys have come to recognize the general breadth of this Act. Aside from having a basic understanding, however, do corporate attorneys know the true effects this Act and the corresponding proposal will have on the legal profession and the companies they represent? The scope of this article is concerned with just that. Specifically, this examination concerns the U.S. Securities and Exchange Commission\u27s proposed noisy withdrawal provision. Briefly, noisy withdrawal refers to the final measures an attorney would be required to take after reporting concerns up the corporate ladder and receiving an inadequate response. As proposed, noisy withdrawal requires withdrawal from representation, disaffirmance of any related documents, and notification to the Commission of the attorney\u27s withdrawal. Although this proposal has merit, as we approach a point in time when Enron type corporate scandals become relatively distant, corporate attorneys should take a moment to consider the farreaching implications. In an effort to garnish support, this proposal has been strategically attached to an Act deemed the long awaited and needed elixir, created to improve corporate governance and to heal the ailing securities markets. Beneath the pretext of this administrative proposal lies the ultimate question that must be resolved before further steps are taken. As a matter of public policy, corporate attorneys must ask themselves whether the perceived need to protect investors by imposing a duty on attorneys to report evidence of corporate fraud outweighs the traditional protections afforded to the sanctity of the attorney-corporate client privilege. As this article suggests, the noisy withdrawal proposal should not be adopted because its negative effects on the long-standing relationship between attorney and corporate client far outweigh the likely benefits to the securities markets. In the wake of corporate irresponsibility evidenced by the Enron fiasco and other corporate catastrophes, Congress prudently passed the Sarbanes-Oxley Act of 2002. The Act is primarily concerned with preventing corporate fraud through increased accounting oversight. As a secondary issue, the Act imposed new guidelines on corporate attorneys to ensure that they are vigilant in their representation of their corporate clients. Congress entrusted the Commission with the implementation of this Act through its rulemaking authority Accordingly, the Commission issued final rule Part 205, requiring corporate attorneys who discover wrongdoing on the part of corporate management to report such malfeasance up the proverbial ladder until the attorney is provided with an appropriate response. With fear that this rule, by itself, would not have the sharp teeth desired to bite down on corporate malfeasance, the Commission, independent of explicit congressional support, proposed the noisy withdrawal provision. Theoretically, this proposal may appear to be the solution to end all corporate malfeasance without any downside costs; however, an objective examination of its practical consequences reveals that it is not. Noisy withdrawal violates the attorney-corporate client privilege and risk[s] destroying the trust and confidence many [corporations] have up to now placed in their legal counsel, creating divided loyalties. Consequently, the attorney\u27s duty to advocate zealously is likely to be negatively affected. Additionally, the client may be discouraged from seeking counsel\u27s advice, leading to the exclusion of the attorney from client meetings; ultimately resulting in the corporate client\u27s deteriorating compliance with securities laws. As will be demonstrated, noisy withdrawal, if implemented, will infringe on the sanctity of the attorney-corporate client relationship, ultimately leading to increased corporate malfeasance. Accordingly, Part 205, as adopted, appropriately balances the competing goals of protecting investors and the market with the long-standing attorney-client relationship. For these reasons, the noisy withdrawal proposal should not be implemented. This article addresses important issues relating to the Commission\u27s rule Part 205, as promulgated, and its noisy withdrawal proposal. The discussion focuses on the likely effects of noisy withdrawal on the attorney-corporate client relationship and asserts that its negative effects outweigh any perceived benefits. Part II provides background information on the development of the attorney-corporate client privilege and the role of the corporate attorney. It then describes the events leading to the enactment of the Sarbanes-Oxley Act of 2002. Part III examines final rule Part 205, the noisy withdrawal proposal, and its alternatives. Part IV addresses the implications of Part 205 on investors, corporate governance and the attorney-corporate client relationship. Part V examines the Commission\u27s authority to promulgate noisy withdrawal. Additionally, it addresses the arguments in favor of noisy withdrawal and concludes with an analysis of the implications of noisy withdrawal if adopted. Part VI offers a proposed amendment to Part 205, which attempts to balance the competing interests of protecting investors against preserving the sanctity of the attorney-corporate client relationship
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 17, Issue 1, Fall 2004
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 16, Issue 4, Summer 2004
The Socratic Screenplay: Law, Allegory and Science Fiction in John and Joyce Corrington\u27s Screenplays for The Omega Man and Battle for The Planet of The Apes
No full textThe law-oriented short stories and novels of lawyer/English professor John William Corrington are receiving increasing attention from legal scholars. However; no one has analyzed the science fiction screenplays he co-wrote with his wife, Joyce, from a legal perspective. This article analyzes two such screenplays and concludes that they are Socratic texts whose narrative structures and epistemological processes work in much the same way that the traditional participatory exchange works in law school. My analysis explores the links between law, allegory and science fiction as intersecting methods to imagine the possibilities for the future
Selling Agricultural Commodities to Cuba - What Happens Next
No full textFor forty-two years, the United States has maintained a comprehensive embargo of Cuba. Its multifaceted prohibitions derive from various enactments and much regulatory minutiae. Not surprisingly, a United States national may not import goods from Cuba or make any kind of foreign investment there. Administrative rules permit only a narrow range of transactions such as travel to Cuba for educational activities provided detailed licensing requirements are satisfied. Few realize, however, that travel to Cuba for tourist purposes is now totally prohibited. In the 2000 Trade Sanctions Reform Act (TSRA), Congress expressly authorized the sale of agricultural commodities including medically-related items to Cuba. This is the sole statutory exemption to the embargo. The pathway leading to the legislation reveals just how difficult it is to change the mindset of the U.S. towards Cuba. Continuance of a Cold War policy in dealing with Cuba is counterproductive especially when a post-Fidel transition period is imminent. Yet the Bush Administration remains intransigent and is pursuing an even harder line against Cuba
The Alien Tort Claims Act: Theoretical and Historical Foundations of the Alien Tort Claims Act and Its Discontents: A Reality Check
No full textThis essay offers an overview of the ATCA (Aline Tort Claims Act), including its origins and early history as well as its contemporary use (and limits) as a tool for victims and survivors of human rights abuse to seek compensation from their abusers when they can be found in the United States. The essay also distinguishes between the reasonable and the unreasonable attacks on the ATCA, which have become especially strident in the last few years, with the Bush Administration breaking strongly with prior administrations in the interpretation of the act. The current attack on the statute rests on a profoundly misleading caricature of its meaning and its effects; indeed, some of the most virulent attacks rest not on actual decisions under Section 1350 but on a handful of cases that have been either filed and dismissed, or filed and not yet dismissed, or simply imagined. The current critique may also be viewed as part of a larger attack on tort actions generally and the class action mechanism in particular, and therefore better targeted at controversial product liability actions, like the asbestos litigation, than the handful of successful cases under the ATCA
Mocking George: Political Satire as True Threat in the Age of Global Terrorism
No full textThis Article examines the First Amendment implications of recent investigations undertaken by the federal government against persons engaged in satirical speech. It explores the democratizing and corrective function that political satire and parody historically have played in American politics. Governmental abuse of power under federal threat statutes is then explored, including 18 U.S.C. §§ 871, 876, and 879, which stifle satirical speech that takes the form of attacks on the President. This Article looks at various incidents in the context of the erosion of the “true threat” doctrine by lower federal courts, and then examines the implications of the Court\u27s recent decision in Virginia v. Black, [FN8] which appears to have restored the speech-protective aspects of that doctrine. The Article concludes that while lower courts improperly have instructed juries to apply an objective, “reasonable person” standard in determining whether certain speech constitutes a “true threat,” appropriately instructed juries have an essential role to play in serving as a popular check on abusive government practices that seek to chill speech critical of government officials and their policies. The Article calls for a standard of conditional relevancy derived from Rule 104 of the Federal *845 Rules of Evidence that would allow such questions to go to the jury once the judge makes the initial determination that there is sufficient evidence of a subjective intent to threaten. Such a standard would balance the role of the judge and jury in such cases consistent with the First Amendment, and ensure that jurors continue to play a meaningful role in serving as an essential check on unaccountable government officials
Combatting Money Laundering and International Terrorism: Does the USA Patriot Act Require the Judicial System to Abandon Fundamental Due Process in the Name of Homeland Security?
No full textThe main question, therefore, in light of the terrorist attacks of September 11 th and the U.S. government\u27s attempt to combat money laundering as a source of potential terrorist funding, is whether the government\u27s use of secret evidence to justify a challenged blocking order represents a violation of the fundamental due process rights of the aggrieved party. In an attempt to evaluate this issue, the remainder of this essay is divided into four Parts. Part I provides an overview of the connection between money laundering and terrorism. Part II describes the statutory history and legislative background to the money laundering provisions of the USA PATRIOT Act, as well as how the Act\u27s provisions raise due process concerns in the context of judicial proceedings challenging a blocking order issued by the U.S. government. Part III examines the rapidly developing body of legal precedent emerging from recent challenges to such blocking orders and the Government\u27s efforts to enforce such orders through the submission of confidential and sensitive evidence on an ex parte, in camera basis. Part IV examines the legal and public policy arguments, both in favor of and against the continued use of such ex parte, in camera evidence as a part of judicial proceedings challenging blocking orders as well as some of the potential ramifications of such a course of action. What emerges from this analysis is the determination that while the provisions of the Act relating to the ex parte, in camera submission of evidence supporting the government\u27s allegations are alarming at first glance, the ultimate goal of cracking down on money laundering as an increasingly potent source of terrorist financing can only be supported by broad enforcement capabilities held in check by the unbiased members of the judiciary
Constitutional Form and Civil Society: The Case of Jamaica
No full textThe nation of Jamaica began a new process of considering amendments to its constitution in 1999.2 Many of the proposals would introduce separation of powers and other similar features of the United States Constitution into the Jamaican constitutional system.3 I visited the Norman Manley Law School in Kingston in 1999 as the first law professor in Jamaica on a Fulbright scholarship. While there, I was asked to teach a course in Comparative Constitutional Law, and the proposed constitutional changes sparked lively discussion. During my lectures, I compared Jamaican constitutional arrangements and civic culture with those of the United States. My general view was that the answers lie not in constitutional structures, but in civic culture. Subsequent outbreaks of political violence in Jamaica have only strengthened my convictions in this regard