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Monetary And Regulatory Hobbling: The Acquisition of Real Property by Public Institutions of Higher Education in Florida
No full textIf you build it, he will come. \u27 Protagonist Ray Kinsella, portrayed by Kevin Costner in the modern classic film Field of Dreams, heard an omnipotent voice make this statement. The voice compelled Kinsella to construct a baseball diamond in the middle of an Iowa cornfield. Field of Dreams recreated a nostalgic time when America\u27s favorite pastime involved the love of the game and sportsmanship, rather than egos and endorsement dollars. A determined man funded and built a baseball diamond, completing the project in a relatively short period of time. Although Kinsella did not know specifically who was to come, he remained committed to the project and believed in its purpose. When he completed the baseball diamond, something amazing happened. He, Kinsella\u27s father, did come, along with some of the greatest players to ever play the sport. Kinsella demonstrated what may happen when a person adheres to his dream without hesitation. If the scene\u27s geography were changed from a farm in Iowa to a public university or community college in Florida, and the protagonist changed from Kinsella to the president of one of those institutions, then the protagonist\u27s response might be something quite different. Rather than building a large-scale project with funding and construction completed in a short period of time, the president\u27s response may sound something like, He can\u27t come, because we can\u27t build it any time soon. The president\u27s response would reflect the frustration and difficulties encountered by those who seek to acquire land and build new facilities, both in a timely manner and at a competitive price, for Florida\u27s community colleges and state universities. He refers to a real person in our community, who would benefit greatly from a community college or university\u27s new facilities. This person may be a student seeking a high-quality, reasonably priced undergraduate or graduate level education; a student with career ambitions requiring a two-year, career-specific Associate in Science degree or technical certificate; a worker requiring job retraining to upgrade his or her skills or prepare for a new career; or, a prospective employee needing entry-level technical job skills. Post-secondary education plays an important role in helping many real-Ife people attain their real-life dreams. The objective of this article is to begin the search for ways to enable Florida\u27s public institutions of higher education to acquire real property at prices that make the most cost-effective use of public funds, and to complete acquisitions in a timely manner so that the institutions can meet their needs to serve students. It is my contention that two elements impede this objective. First, funding for land acquisition and educational facility construction is insufficient to meet the reasonable needs of Florida\u27s public universities and community colleges for land and buildings. Second, the current process of identifying the need for real property and obtaining the authorization and funding for acquisitions is too slow and cumbersome. This element generally places institutions in a disadvantageous bargaining position and also prevents them from moving quickly when a good purchasing opportunity arises. Funding is the more critical of the two problems. Even if the inherently problematic process was addressed, state funding for the capital outlay projects of public higher education is so scarce that the institutions would be unable to meet students\u27 needs. The problematic process exacerbates the financial situation by raising the cost of projects. Moreover, the delays caused by insufficient funding also tend to increase the cost of projects because the price of land and construction tend to increase over time. These problems existed before the economic slump of the early 2000\u27s. Florida\u27s current economic plight compounds an already extant situation. Students need post-secondary education now. They should not have to wait for a better economy. Moreover, an educated populace and a well-trained workforce are key to the economic growth of an area. We must provide educational facilities and the land on which to build those facilities in a timely, cost-effective manner. We cannot simply wait until the economy changes and the Legislature appropriates adequate funds. This article provides insight into the nature of the problems, and then suggests some solutions. Some of these suggestions are interim measures until the Florida Legislature provides adequate funding. Others could assist in achieving a long-term solution. The article also suggests a number of solutions to the overly cumbersome process. These recommendations will prove beneficial even after, or if, the adequacy of funding is addressed. This article examines and critiques the land acquisition process from the perspective of the public institutions of higher education in order to identify the issues that interfere with the institutions\u27 ability to achieve efficient, costeffective results in real estate acquisitions. The article begins by examining the problems in the process. First, for purposes of comparison, this article describes a typical real estate acquisition by a commercial business enterprise. Second, it describes the public higher education transaction, including the statutory and regulatory processes that govern decisionmaking, obtaining authority and funding for the acquisition, as well as the limited financing options. Third, the article pinpoints problematic issues in transactions of the public institutions of higher education. Finally, the article identifies possible solutions for both the process and funding issues. It also analyzes the legal and policy ramifications to identify and recommend those solutions most worthy of further study
Policy-Oriented Jurisprudence and Human Rights Abuses in Internal Conflict: Toward a World Public Order of Human Dignity
No full textBook: The Methods of International Lawhttps://scholarship.stu.edu/faculty_book_chapters/1029/thumbnail.jp
Front Matter
No full textFront Matter includes Masthead, and Table of Contents for St. Thomas Law Review Volume 17, Issue 2, Winter 2004
The C Word: Collegiality Real or Imaginary, and Should It Matter in a Tenure Process
No full textFor over two thousand years, since the times of Jesus Christ, society has valued collegiality as one of its pillars in advancing human relationship: Now I plead with you, brethren, by the name of our Lord Jesus Christ, that you all speak the same thing, and that there be no divisions among you, but that you be perfectly joined together in the same and in the same judgment. Collegiality is cooperative interaction among colleagues. Put another way, collegiality results when two or more individuals who are willing to engage in a common enterprise (the cooperative component), actually engage or participate in the enterprise (the interaction component), thus achieving a common goal (the colleagues component). Others call it \u27work[ing] well with colleagues,\u27 \u27demonstrat[ing] good academic citizenship,\u27... \u27contribut[ing] to a collegial atmosphere,\u27 ... and \u27get[ting] along,\u27 [or] \u27fit[ting] in\u27 . . . . While these and dozens of other definitions contour the boundaries of a seemingly simple principle, in the end, what collegiality is rests on the subjective interpretation of the inquirer. Each of us decides - depending on our individual interpretative mechanisms - whether being collegial means having a personality that suits ours, being able to disagree without being disagreeable, or having to forfeit one\u27s contrary opinion to another\u27s for the sake of keeping the peace. Subjectivity can be a very difficult adversary for anyone who seeks to define a general concept over which reasonable minds can readily disagree. Subjectiveness is fertile ground for misunderstandings that eventually lead to unintended but harmful consequences. Curiously and despite its operational breadth, particularly as within our inherently imperfect language, a majority of higher education institutions use collegiality as a criterion, but fail to define collegiality as an objective criterion when determining a professor\u27s eligibility for tenure. The most common reason advanced is that standardizing objective definitions stifle freedom of speech and dissent. Additionally, critics are quick to pull the race/sex/religion card. They claim that subjective discriminatory animus ultimately seeps into the objective conscious decision-making process. Ironically, the majority of institutions openly allow the subjective use of collegiality as a determinative factor. Accordingly, due to its nature, collegiality cannot be an objective criterion, only a subjective one. Thus, collegiality can be (subjectively) considered as long as its results are not acknowledged as having resulted from such consideration. Ostriches hide their heads in the sand because they believe that it makes them disappear from a predator\u27s view even though it is clear that their entire body is visibly not in the hole. But unlike an ostrich, this article will show that the results sought to be avoided by keeping collegiality a subjective rather than an objective criterion can be better achieved precisely by the inverse. By objectively defining collegiality, one will speak one\u27s mind without the fear of being branded un-collegial. That is, the speaker will know, as everyone else will, that disagreeing on a point of discussion, without being disagreeable, advances collegiality. Collegiality, as in achieving the common goal of seeking the truth, after all, depends on the free exchange of ideas. Hence, freedom to disagree and to dissent are integral parts of collegiality. This article will also show that an objective definition of collegiality squashes discriminatory pretext. Not defining a criterion admittedly used to make a determination permits the use of just about any definition that fits the facts. Further, relying on any definition that fits the facts ultimately yields a greater spectrum of available definitions. Thus, the greater the spectrum of definitions, the more choices exist, and the easier it is to come up with a definition that masks discriminatory intent. Clearly, the result is a greater use of collegiality as pretext to exercise discrimination. Such greater use, however, remains generally unknown - or better said, unacknowledged - because one is not supposed to rely on it objectively, only subjectively. On the other hand, however, an objective definition of collegiality would significantly reduce discriminatory pretext abuse because it would unquestionably decrease any subjectivity, and establish the specific circumstances under which collegiality would or would not exist. Any other circumstances not defined or established would fall outside the objective characteristics, and would thus be unavailable as pretext for discrimination. The fewer subjective opportunities that exist, the harder it becomes to discriminate and the easier it is to detect any parasitical discrimination. This result is, precisely, what opponents of segregating and defining collegiality want. So, why isn\u27t collegiality, as a separate and defined criterion, used to determine whether a professor is eligible for tenure
Dawn Raids Here at Home - The Danger of Vanishing Privacy Expectations for Corporate Employees
No full textThis article posits that, due to the limited and diminishing privacy protections for corporate employees, Fourth Amendment jurisprudence is closer to permitting dawn raids in the workplace than popular opinion might suggest. First, the employee standing requirement to challenge an illegal search means employees must have a privacy interest in the particular workspace searched. In certain instances, then, individual employees have no way of protesting the use of illegally obtained corporate documents against them, including documents they have authored. Second, there may be few protections available to employees insofar as modem, widely-used workplace technologies are concerned, such as company computers and e-mail accounts. Finally, with the passage of the USA Patriot Act, businesses can be coerced into helping the government perform still more invasive investigations of employees, particularly in the areas of \u27wire communication\u27 technology such as Internet access, e-mail, voice mail, and telephone service .... This article examines each of these limitations in turn. Part I outlines the EU dawn raids in more detail to provide a basis for comparison with traditional American approaches. Part II discusses the employee standing requirement for challenging illegal searches. Part III discusses how technological advancements in the workplace have further impacted employee privacy expectations. Part IV examines the implications of the USA Patriot Act for businesses, hypothesizing that this legislation will prevent organizations from acting as a privacy shield for their employees. Part V concludes by arguing that Fourth Amendment jurisprudence must become more protective of employee privacy, or else American law enforcement officials will have the legal (if not yet the cultural) basis for taking a disturbingly dawn raid like approach to corporate crime
Bringing Reason and History onto the Same Page: Lobato v. Taylor and the Struggle over the Common Lands of Spanish and Mexican Land Grants
No full textLawyers, scholars and commentators have struggled for decades to articulate the proper role of Spanish and Mexican law and culture in the context of land grant litigation. Historians and legal scholars have suggested that the clash of two distinct and incompatible land tenure systems was, and still is, at the core of the issue. Other scholars and commentators posit that land grant policy and litigation was driven by the United States\u27 early twentieth century quest to organize its public domain and the unscrupulous efforts of land speculators. The efforts of academics, for the most part, did not provide the assistance or guidance needed by litigators advocating for the descendants of the original land grant settlers in twentieth and twenty-first century American courts. Certainly, the litigation did not solve the disputes over the common lands of the southern Colorado and northern New Mexico land grants. Disputes regarding Spanish and Mexican land grants have engaged local and national courts for more than 150 years. None has invoked more litigation, academic literature, and lore than those addressing the use of the common lands of the former Sangre de Cristo Land Grant. The latest chapter in the litigation concerning the common lands of the Sangre de Cristo Grant is documented in Lobato v. Taylor, the Colorado Supreme Court\u27s most recent attempt at resolving a dispute that has consumed local residents for the greater part of two centuries
Measure for Measure: Two Misunderstood Prinicples of Damages, Exodus 21:22-25 Life for Life, Eye for Eye and Matthew 5:38-39 Turn the Other Cheek
No full textThe most important measure of damages is measure for measure: the rule of proportional damages, which in its most famous iteration is the rule of eye for eye. Found most prominently in the biblical Book of the Covenant in Exodus 21:22-25, the rule states that where two men fight and in the course of their fight a pregnant woman and her fetuses are killed the penalty shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, stripe for stripe. The biblical maxims eye for eye and you have heard it said \u27eye for eye,\u27 well I say to you turn the other cheek, found in Matthew 5:38-39, are extraordinarily well known and widely misunderstood. They are also highly important in the development of jurisprudence to this day. Surprisingly, it was not until the 1990\u27s when Professor Calum Carmichael of Cornell University rediscovered the meaning of life for life, eye for eye in Exodus: its meaning had been lost for over 2,000 years. By analyzing the story in the biblical narrative of Judah and Tamar, Professor Carmichael discovered that life for life, eye for eye\u27 in Exodus meant capital punishment followed by deprivation of burial rites to the point of complete and thorough destruction of the corpse, resulting (in the ancient way of thinking) in a second eternal death in the afterworld. Professor Carmichael wrote about the meaning of the phrase in the context of how the eye for eye rule fits within the context of the biblical narratives. Here I wish to trace the history of eye for eye in legal history, from its most ancient origins to its considerable influence upon modem jurisprudence
The Alien Tort Statute: An Emerging Threat to National Security
No full textThe American judicial system has been remarkably well insulated from the pressures of international law. Consequently, when federal judges try to apply international principles in domestic cases there are mistakes and collateral damage. This is a story of how some federal courts have taken the relatively obscure Alien Tort Statute ( ATS ), a two hundred year old law, and applied it in such a bizarre fashion that it threatens the overseas activities of most U.S. companies. It also threatens U.S. security operations, since the Department of Defense ( DOD ) relies heavily on contractors for essential combat support services in foreign theaters of operations. The DOD also relies on foreign governments to wage coalition warfare or apprehend terrorists. Recent ATS decisions have the potential to interfere with the manufacture and use of new weapons systems and operational concepts, disrupt foreign training programs, and undermine good order and discipline if individual servicepersons become the objects of suit. This paper will focus on the foreign policy and national security implications of recent ATS rulings and how this weapon of judicial activism can be used to ambush DOD planners and contractors when the order is given to engage a foreign enemy
The State Farm Punitive Damage Multiplier in the Courts: Early Returns
No full textOn May 22, 1981, on a two-lane highway in rural Utah, Curtis Campbell attempted to pass six tractor-trailers.\u27 He was not successful. When the wreckage cleared, the driver of an oncoming car was dead, the driver of one of the cars in line ahead of him was paralyzed, and the United States Supreme Court\u27s punitive damages jurisprudence suddenly exploded. In one fell swoop, the United States Supreme Court, with the aid of the bad faith of State Farm Mutual Automobile Insurance Company ( State Farm ), led by the editorial page of the Wall Street Journal, accomplished what the business community of this country had failed to do for many years: impose an arithmetical constitutional cap on punitive damages. Or did it? State Farm Mutual Automobile Insurance Co. v. Campbell represents the second United States Supreme Court case to hold a punitive damage award constitutionally excessive, but the first to state a quantitative standard as a matter of substantive due process. The arithmetical limit imposed represents the first standard capable of being applied by trial and appellate courts with precision. State Farm is revolutionary and is as important as any tort case in the Court\u27s history. The Court\u27s opinion contains sufficient qualifications to call into question the force with which the quantitative or ratio limits will be enforced by courts that actually decide subsequent cases. This article reviews the U.S. Supreme Court\u27s earlier forays into the punitive damage morass; considers State Farm in detail; and reviews the effect of State Farm\u27s holding on cases decided since its promulgation
Teaching Harbeson
No full textLike many torts teachers, I assign students Harbeson v. Parke-Davis, a wrongful-birth/wrongful-life case decided by the Washington Supreme Court in 1983, as part of a chapter on damages. Harbeson is a useful case, but it is also quite difficult, partly for procedural reasons\u27 but also because of the substanc