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The Fiction of Freedom of Contract - Nursing Home Admission Contract Arbitration Agreements: A Primer on Preserving the Right of Access to Court under Florida Law
No full textThe primary purpose of this article is to provide a litigation paradigm on how the use of compelled nursing home arbitration agreements in Florida can be successfully challenged and a patient\u27s right of access to the courts preserved. This article includes an examination of the use of compelled arbitration agreements under Florida law and their treatment by the courts. It also includes an analysis of how Florida\u27s courts have generally responded to the widespread use of arbitration provisions. Further, it contains a review of the defenses available under Florida law that can be used to defend against compelled arbitration provisions. Finally, it examines how attorneys representing nursing home patients can use an evidentiary hearing to successfully prove that an arbitration clause is unenforceable
The Myth of Machismo: An Everyday Reality for Latin American Women
No full textThis paper attempts to present a loose, culturally driven definition of machismo and how this cultural belief affects a woman\u27s place in Latin America. With this, another aim is to present a view of the available statistics regarding battering in Latin America. Finally, it is necessary to correlate machismo with the available laws and the ineffectiveness of their application. It is important to also recognize that women\u27s rights groups within Latin America have attempted to pursue certain new avenues to combat domestic violence. Furthermore, the international community has begun to analyze the benefits and consequences associated with the attempt to fight domestic violence in Latin America with traditional provisions of human rights law. It is with cautious optimism that one must approach the subject of domestic violence in Latin America. Advances are necessarily few when violence, and any response to it, is based upon the fundamental inferiority of women and male dominance over the female
The Child Tax Credit: How to Phase-out Family Values
No full textIn recent years, the integrity of our nation\u27s tax system has been challenged with every new section added to the current Internal Revenue Code ( I.R.C. or the Code ) because Congress has created an unrealistic task of tax calculation for the average taxpayer. It is goal of the Code to express progress in how we tax ourselves, which is done by striving for a certain level of fairness in horizontal and vertical equity. One of the ways that Congress attempts to meet this goal is through developing certain personal credits and deductions but then providing for the phasing-out of benefits in order to affect a target group of taxpayers. This method of promoting progressivity, in actuality, increases the marginal tax rate of the phased-out taxpayer, and in some cases, functions as a penalty. More specifically, the Child Tax Credit and the personal exemption deduction are examples of how legislative enactments can further complicate the Code with use of phase-out provisions, especially when there are more efficient means available to meet its purpose, thereby threatening the integrity of the present tax system. Subtle changes to Section 24 of the Code that took effect on January 1, 2004, altered the effect of the Child Tax Credit on the individual taxpayer. Another aspect of the Code section that impacts the taxpayer is the surviving limitation by way of a threshold amount that functions as a phase-out based on modified adjusted gross income. While the law makers have decided to leave the phase-out unaltered, they have neglected to add any type of inflation adjustment, which was also lacking in the previous version of the section. The actual function of the Child Tax Credit alone is rather basic in interpretation and computation; however, the manner (in which this credit works to meet the purpose of those who adopted it) is much less efficient than merely increasing the Personal Exemption, which would easily meet the same purpose. Analyzing the actual tax implications of both the personal exemption and the Child Tax Credit leads to the reason why there is a need for both of these sections in the Code, or, at least, why the requirements are so different. Further analysis demonstrates the slight advantage the average taxpayer may receive from an inflation adjusted phase-out and the marginal tax rate implications of all phase-outs, which are not readily obvious to the average taxpayer. To get to this analysis, there is an exploration of the legislative history and purpose of the code sections and further discussion of horizontal and vertical equity. After an analysis of the basic use of phase-outs, with efficiency and equity issues, there are proposals for possible ideas for tax reform
The Law of Obscenity - or Absurdity
No full textAt any rate, if the First Amendment only protects expression that the majority believes will promote the right values, it does not protect very much. Sexually explicit materials arouse intense, deep-seated feelings, and from a moral point of view, the desire to stop their dissemination is understandable. But the censoring of morally bad ideas is glaringly incompatible with the most basic principles of First Amendment law. Nonetheless, for nearly two hundred years the censorship of morally offensive materials has been a part of our legal history, notwithstanding the absolute terms of the First Amendment
The Great Cookie Caper: Internet Privacy and Target Marketing at Home and Abroad
No full textDid George Orwell have it all wrong? Is Big Brother really a multinational company with a Web site employing cookies; enabling it to track its visitors\u27 every move? The Internet\u27s popularity as a virtual marketplace and the resulting boom of e-commerce has developed exponentially due to the speed and convenience of on-line shopping and access to information. However, this technological advancement also allows for the collection, storage, and transmittal of personal information. With unlimited access to a vast array of personal information, advertising agencies conduct marketing campaigns targeted at individual e-consumers. Unfortunately, most consumers are unaware that they divulge personal information in exchange for simpler, speedier transactions. Control of personal information used in targeted marketing translates into a privacy issue pitting Internet users, who desire to remain anonymous in cyberspace, against businesses who pay top dollar for the personal information to conduct expansive marketing campaigns. Web surfers are entitled to privacy protection. Their rights are violated by dissemination of personal information, but the current law does not adequately protect them. This note explores the issue of on-line user privacy protection in the United States and the European Union. Specifically, two theories of privacy will be examined; the U.S. theory, viewing privacy as a commodity controlled through the free-market approach, and the EU theory, approaching privacy as a fundamental right. Part II evaluates the current state of affairs and discusses privacy protection instruments already in place in the United States. This encompasses constitutional allocations, tort law, and legislative approaches, which reveal that current protections are not broad enough to protect privacy in the on-line world. Part III explores cookie technology employed by on-line advertising firms worldwide, illustrating the technical side of privacy invasion. Generally, many players representing many facets of the marketplace are involved in the privacy debate, and the few compromises are inevitably based on the infinite value of personal information. Specifically, who are the players? What are their views and strategies? In whose direction is the pendulum swinging, and what can be expected on a short and long-term scale on the home front? Additionally, what precautions can surfers take to personally ensure their information is adequately protected? Part VI of this article examines the Internet data protection regulation currently established by the European Union; specifically, the European Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data effective as of October 25, 2000 (hereinafter Data Privacy Directive ). In examining the Data Privacy Directive, privacy as a fundamental right will be carefully examined. Finally, Part VIII reflects on the successes and failures of both systems and suggests the United States should adopt a model similar to that set forth by the European Union in order to effectively protect its citizens. This note is not intended to comment on the benefits of any social policy, and any statements on the pros or cons of big or small government are purely incidental
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 16, Issue 1, Fall 2003
Immigration Policy and the Expedited Removal Rule: Equality for Some, Justice for None
No full textIn the aftermath of September 11th, the world questioned how nineteen terrorists could have lived for so long in the United States without being detected. The media, once a champion for immigration woes, denounced immigration policy as a toothless farce, swaying to the pressure of activist groups. Naturally, America heightened its state of alert and tightened its fists, closing its borders until it could implement a system for weeding out undesirable aliens and monitoring potential threats to homeland security. Due to those restrictive measures, however, many asylum-seeking groups, which found it difficult to gain access to the United States before the terrorist attacks are now facing even greater challenges to enter the country. This article is an analysis of United States immigration policy for one of those marginalized groups, the Haitians, by examining current and proposed legislation affecting asylum-seekers from the poorest country in the Western Hemisphere. Part I of this article will provide an overview of United States refugee and asylum law in the years since the Cuban Revolution, examining the intent of the Cuban Adjustment Act ( CAA ) of 1966--an act for which there have been relatively narrow exceptions and qualifications, and the effects of its successors on modern adjustment legislation. Part II will discuss Haitian adjustment and its brethren, illustrating shifts in immigration policy during the past ten years as the United States responded to international crises and changing political conditions. Part III will highlight some of the debates regarding treatment between different asylum seeking groups, and will describe the evolution of various restrictive immigration regulations for other groups through such legislation as the Haitian Refugee Immigration Fairness Act of 1998, the Central American and Haitian Adjustment Act of 1999, and the proposed Haitian Immigrant Equitable Adjustment Act of 2002. Part IV will provide a synthesis of those acts, including an analysis of the legal and political response of American courts and administrative agencies to such policies as the Immigration and Naturalization Service\u27s Haitian Program of 1978 and the Expedited Removal Rule of 2002. Part V will evaluate and compare the restrictions in place for both the Cubans and the Haitians. Finally, Parts VI and VII will provide a retrospectus5 of where immigration law has been and a prospectus for where it is going, including recommendations and considerations for new immigration policy
The Failure of the Nation State and the New International Economic Order: Multiple Converging Crises Present Opportunity to Elaborate a New Jus Gentium
No full textBoth the New International Economic Order ( NIEO ) and the New World Order (NWO) have failed to end poverty in the third world, most notably in Africa. The failure of these two theories, themselves responses to the failure of the Westphalian state system, and the material facts of globalisation present an opportunity to elaborate a new law of nations. Abandoning the Westphalian model is the best way forward, not only because of the technological revolution in the first world, but also for cultural reasons in Africa, where borders almost never correspond to nations
Front Matter
No full textFront Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 15, Issue 4, Summer 2003
Florida Legal History: The Courts and Law during the Civil War, Reconstruction and Restoration Eras
No full textFlorida\u27s legal heritage includes a wide range of direct influences. Spanish law played a role in the establishment of Florida territorial law, which was gradually superseded by English common law. Florida\u27s ties to the other southern states contributed to the development of local laws consistent with those of the Old South. Even today, the root of many existing Florida laws lies in these historical eras. Those seeking to interpret unclear law would be assisted in knowing the historical reasons behind particular legislation or court decisions. One remarkable era is that of the years from 1860 through 1880, a time of confusion, distrust, lawlessness and the eventual return of order to Florida