STU Scholarly Works (St. Thomas University)
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Women Whose Governments are Unable or Unwilling to Provide Reasonable Protection from Domestic Violence May Qualify as Refugees Under United States Asylum Law
No full textSince the issuance of the United States Gender Guidelines in 1995, the immigration agencies have faced special challenges in applying them in particular cases, and in institutionalizing their commitments and principles. Since adoption of the guidelines, many asylum officers, immigration judges and Immigration and Naturalization Service (INS) trial attorneys have shown greater sensitivity in addressing gender-related asylum claims. Nonetheless, in some cases lawyers for the INS have suggested that a heightened test of extraordinary persecution is appropriate or that the applicant must show persecution on account of gender plus something elsein order to prevail. Claims involving domestic violence have raised particular concerns. Although the guidelines state that domestic violence can be the basis for an asylum claim, some INS attorneys have suggested that domestic violence is a private family matter not subject to protection under United States asylum law. As a result, this article originally was submitted as a position paper by the Refugee Law Center, Inc. and the Women and International Law Program of American University\u27s Washington College of Law, in collaboration with other nongovernmental organizations, to the INS. Its purpose was to provide a framework of analysis of domestic violence as a human rights violation and as a basis for asylum protection
Showdown at the Domain Name Corral: Property Rights and Personal Jurisdiction over Squatters, Poachers, and other Parasites
No full textThis paper on domain names disputes has two main goals. The first is to analyze the principal points of litigation in domain name disputes, namely, personal jurisdiction and trademark liability. The second is to propose an analytic framework to better help resolve matters of jurisdiction and liability. Regarding personal jurisdiction, domain names are problematic because an internet site can be viewed almost anywhere, potentially subjecting the domain name owner to suit everywhere. For example, should a Florida domain name owner automatically be subject to suit in Alaska where the site can be viewed? If not, then where? Regarding liability, trademark law would normally permit multiple persons to use identical or similar trademarks, so long as the products or locations are sufficiently remote. Put differently, in the real world, UNITED AIRLINES can co-exist with the UNITED WAY. But on the internet, there can only be one UNITED.COM. As an aid to analysis, the paper proposes three categories of domain name disputes, with suggestions on how to resolve jurisdictional and liability issues for each. First, some disputes concern cybersquatters, those who speculatively purchase domain names with the intention of selling them for profit. Second, other disputes concern \u27parasites,\u27 those who have no intention of selling the domain, but instead hope to gain financially from confused users. Third, some disputes concern \u27twins,\u27 where the domain name owner and challenger both have legitimate claims to using the same name in the brick-and-mortar world. Through these three categories, the paper suggests ways of resolving issues of personal jurisdiction and trademark liability
Introduction to the Study of Law: Cases and Materials
No full textThis coursebook is designed for use by beginning law students. The first three chapters provide background reading for the summer months preceding law school and are intended to initiate the student to legal reasoning, law school, and the case method of study. The four topics following these chapters provide several assignments for teaching an orientation course. These assignments focus on the techniques of the case method of study in the areas of Contracts, Property, Torts, and Criminal Law and include explanatory and thought provoking discussions, sample case briefs and sample questions. The purpose of the orientation course is not to teach substantive law, but to initiate the student to the methods of legal reasoning. The Third Edition of Introduction to the Study of Law adds a number of new readings while at the same time streamlining the existing readings to provide a greater focus on what a student needs to prepare for the unique method of study found in law school. The previous edition split the nature of law and legal reasoning into separate chapters; this edition combines them in order to show their integrated nature. The final chapter continues to introduce the student to the unique case method of study, but this edition has added material to provide further guidance on the mechanics of reading, annotating, and briefing cases. The topics remain mostly the same, with a few exceptions. The most notable change is the addition of a topic in the area of criminal law and statutory analysis.https://scholarship.stu.edu/faculty_books/1027/thumbnail.jp
An Attorney\u27s Right to Retain Fees Derived From a Fraudulent Law Suit
No full textThe remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of any personal chattel which was the immediate occasion of the death of any reasonable creature, but has also expanded to all monies and properties derived from criminal statutes, such as Racketeer Influenced and Corrupt Organizations Act (RICO) or Continuing Criminal Enterprise (CCE). Under these statutes, a forfeiture need not be predicated upon a criminal conviction. The government has the right to obtain the property suspected of being the fruit of ill-gotten gains, before it is proved in court that the government\u27s suspicions are true. Some would argue that such prejudgment forfeiture results in the visceration of the presumption of innocence. Moreover, in terms of the ability to engage counsel, it works a terrible hardship on the possessor of the forfeited property. However, should the doctrine of forfeiture always apply
Native American Life Stories And Authorship : Legal and Ethical Issues
No full textJuridical discourse concerning life stories has been primarily concerned with property and contract issues, and categories such as ownership and authorship. Such legal discourse generally fails to acknowledge the unique nature of Native American life stories, particularly when such stories are written in collaboration with a non-Native editor or transcriber. This essay focuses on one fundamental question with overlapping legal and ethical aspects: how does a non-Native collaborator avoid a colonizing relationship to Native American texts? In suggesting possible answers to this vexing question, I always have on the horizon of my mind\u27s eye two figures-Emmanuel Levinas, the philosopher, and Coyote, the trickster. Both remind me of the dangers of paradigms and the difficulty of my task. Levinas reminds me that paradigms are guilty of irresponsibility and tend to destroy Otherness. Coyote reminds me that paradigms are meant to be broken in the name of fluidity and freedom. Keeping their admonitions in mind, I will attempt the delicate task of proposing an answer via the route of the master paradigm that is the law. It is well known that Native Americans have suffered legally sanctioned appropriation of property rights in genocidal proportions. But there is one area of property law that has yet to be explored in any detail-intellectual property rights of Native American life stories. When such life stories are, as often happens, written in collaboration with a non-Native editor, translator, or transcriber, the commodification and objectification of the Other becomes a real possibility. This hazard of appropriation is always present when a text is the product of two unequally powerful cultures. Collaborations also raise some thorny issues in copyright, since the law is uneasy with the concept of multiple authors for a single work. In grappling with some of the legal and ethical issues raised by collaborative life stories, I first describe the various legal options currently available for intellectual property rights in collaborative texts. Secondly, I explore the moral and ethical dimensions at stake in the categories of authorship and ownership of Native American life stories. Finally, I suggest some ways to legitimate the human rights underlying the property rights in Native American life stories by rethinking the category of author in relation to Native American cultural patrimony. I propose that collaborators should always contractually provide that the Native American subject retain copyright in his or her own life story. Throughout, I will keep at the forefront a central issue raised by the Jewish philosopher Emmanuel Levinas (who himself experienced the extreme contempt for Otherness that was the Holocaust)--how can we make it impossible to annihilate the Other? How can we find a way of thinking (and writing) that lets the Other be? The texts I am interested in-Native American life stories edited by, or written in collaboration, with a non-Native-pose a definitional problem. They often are categorized as autobiography, and share many of the characteristics of autobiography-a first person narration of the story of an individual\u27s life. Historically, though, they have been created by two people-one White, one Native American.? While such bicultural texts may range from the literary right across to the anthropological, there is one thing they share in common: the claim that this is a representation of an Indian speaking. 4 For purposes of utility, I have labeled such personal narratives, written with a non-Native collaborator, as Native American life stories
Maternity as a Legal Fiction: Infanticide and Sir Walter Scott\u27s The Heart of Midlothian
No full textThis article explores the complex reification and mythologizing of the feminine in law and literature, using Sir Walter Scott\u27s influential historical novel, The Heart of Midlothian, to explicate the legal stories surrounding the category of maternity. First, we will begin with Scott\u27s legal background in order to examine how his legal expertise influences his novels. Second, we will examine the law of infanticide in Scotland and England during the time frame of the novel, focusing on the legal fiction of presumptive guilt underpinning the infanticide statute at issue. Third, we will explore the interrelated maternity narratives of the statute and the novel in light of Rene\u27 Girard\u27s work on persecution texts (i.e., documents legitimizing collective violence against a scapegoat figure). My conclusion is that Walter Scott\u27s The Heart of Midlothian and the 1690 infanticide statute which fuels its plot activate a complex of tensions around the concept of maternity. The text\u27s narrative structure mirrors the key element of the statute- concealment. Scott gives us depths and surfaces, interiors and exteriors. He conceals in order to reveal, hides in order that we may find. In particular, Scott reveals the statute\u27s operation as a persecution text and critiques the scapegoat role into which unwed mothers are forced. But in critiquing an already obsolete statute and revealing the persecution of women underpinning that statute, the text itself also constructs another, hidden scapegoat- the murderous mother
Faces of Vulnerability: Protecting Individuals, in Organic and Non-Organic Groups
No full textBook: The Living Law of Nations
Essays on refugees, minorities, indigenous peoples, and the human rights of other vulnerable groups: in memory of Atle Grahl-Madsen.https://scholarship.stu.edu/faculty_book_chapters/1031/thumbnail.jp
Law and Literature: Text and Theory
No full textFirst published in 1996. The first anthology of its kind in this dynamic new field of study, this volume offers students the best of both worlds-theory and literature. Organized around specific themes to facilitate use of the text in a variety of courses, the material is highly accessible to undergraduates and is suitable as well for graduate students and law students. The anthology includes important articles by key figures in the law and literature debate, and presents seven thematically arranged sections that:Survey the various theoretical perspectives that inform the relationship of law and literatureExamine the interplay of ethics, law, and justice * Highlight the great scope and variety of the law\u27s contributions to the creation of a world view * Illustrate various legal approaches to punishment * Detail and analyze the law\u27s inherent capacity for the oppression of individuals and groups * Demonstrate that law is grounded in language and storytelling * Show that despite its solemnity, the law has a comic sideEach section includes excerpts from poetry, drama, fiction, and nonfiction. The excerpts include writings addressing the law\u27s impact on the outsider (women, Native Americans, Hispanics, African Americans, and homosexuals), as well as writings by lawyers, judges, and law professors, giving the reader an insider\u27s view of the legal system. The selections range from Plato to John Barth and Wallace Stevens. At this time of increased interest in the quality of legal writing, this course material illustrates the importance of language, word choice, metaphor, and narrative. It demonstrates the practical application of literary effects, techniques, and devices, and provides valuable insights into law as a vital component of the social fabric.https://scholarship.stu.edu/faculty_books/1002/thumbnail.jp