STU Scholarly Works (St. Thomas University)
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Federalism: An Architecture for Freedom
No full textIn a country whose business is business, the Constitution has served as the best export article ever. The United States Constitution has influenced community life in most of the modem world. Its model of pitting power against power in a variety of ways, as well as its more or less absolute limit to governmental control set by the Bill of Rights, has become a blueprint for many communities around the globe that call themselves democratic. Despite the relative youth of the community it governs, the U.S. Constitution is the oldest of its kind. Scolded for many perceived imperfections, it still provides a highly successful model of prescriptions on community governance. Its central notion is the idea of allocating power vertically, between the national government and its, by now fifty, component states. The label federalist was chosen to express the essence of the Constitution in the title of its most authoritative explanatory statement as well as in the name of the first dominant political force of the Union. Thus, it is no small wonder the idea of federalism is most closely connected with its U.S. version. In a rising tide of victory, particularly after World War II, the notion of federalism has come to characterize an ever greater number of systems of government. Today, the term federal is used to denote structures of government as diverse as those of Switzerland and Brazil, Nigeria and Germany, Canada and India. The Soviet Union, Czechoslovakia, and Tito\u27s Yugoslavia provide other, albeit now largely historical, examples. In an extension of the concept, the European Community has been included as an embryonic example of a treaty-based federalism.- What is the status of federalism today? Can it be a model for the emerging and restructuring communities of the New Europe
Federalism: An Architecture for Freedom
No full textIn a country whose business is business, the Constitution has served as the best export article ever. The United States Constitution has influenced community life in most of the modem world. Its model of pitting power against power in a variety of ways, as well as its more or less absolute limit to governmental control set by the Bill of Rights, has become a blueprint for many communities around the globe that call themselves democratic. Despite the relative youth of the community it governs, the U.S. Constitution is the oldest of its kind. Scolded for many perceived imperfections, it still provides a highly successful model of prescriptions on community governance. Its central notion is the idea of allocating power vertically, between the national government and its, by now fifty, component states. The label federalist was chosen to express the essence of the Constitution in the title of its most authoritative explanatory statement as well as in the name of the first dominant political force of the Union. Thus, it is no small wonder the idea of federalism is most closely connected with its U.S. version. In a rising tide of victory, particularly after World War II, the notion of federalism has come to characterize an ever greater number of systems of government. Today, the term federal is used to denote structures of government as diverse as those of Switzerland and Brazil, Nigeria and Germany, Canada and India. The Soviet Union, Czechoslovakia, and Tito\u27s Yugoslavia provide other, albeit now largely historical, examples. In an extension of the concept, the European Community has been included as an embryonic example of a treaty-based federalism.- What is the status of federalism today? Can it be a model for the emerging and restructuring communities of the New Europe
Lights, Camera, Action : Presenting the Medical Expert in Trial
No full textThe legal system has long recognized the use of expert testimony. Attorneys for both plaintiffs and defendants frequently present testimony from an expert to make crucial points on behalf of their client. Experts run the gamut of knowledge. They may represent training and highly technical backgrounds. They may represent a wealth of knowledge garnered simply by a lifetime of involvement in their fields of expertise. They usually represent both. When considering the use of the medical expert, since both the academic and practical bodies of knowledge are of considerable importance, an understanding of the individual with whom you are dealing as well as the background, training, credentials and practical hands-on experience of the expert will constitute the foundation from which to build on the expert\u27s testimony. An attorney\u27s encompassing knowledge of the medical expert is no less important than knowledge of the fact pattern, case law, and an understanding of the precedents considered vital in the preparation of his client\u27s case. The more an attorney knows about the medical expert and from the medical expert, the better able the attorney will be to drive home the value of the expert\u27s testimony. Wondrous shades of gray exist in the diagnostic and therapeutic process in the practice of medicine, unlike in the practice of law with an establishment of only black or white in a verdict and its incorporation of compensatory and punitive awards. The lawyer must have the ability to work with the medical expert not only to put forth what should be said, but also to bring out what must be said in a persuasive manner so that all who hear it will be drawn to decide in favor of the client. This Commentary examines the manner and method to most effectively utilize the medical expert in trial
Order in The Court
No full textToday, with growing alarm we witness a continual escalation in incivility culminating all too frequently in violence. It is high time that Order in the Court includes good manners, disciplined behavior, and respect for the system. It is these ingredients that are at the core of maintaining and preserving our democratic system. Perhaps it is time to supplement the code of professional responsibility with a code of personal behavior to insure civility in courts
Dickman Confined: The Taxation Of Gratuitous Transfers of Use
No full textThe vast majority of cases never leave their moorings of facts and legal issues. However, some transgress their initial environment, becoming the fons et origo of new theories of law. These cases proliferate into previously untouched segments of life and generate new bodies of legal doctrine. The 1984 decision of the United States Supreme Court, Dickman v. Commissioner, proved to be just such a controversial and consequential judicial pronouncement. By approving the taxation of interest-free demand loans under federal gift tax laws, Dickman overruled a longstanding line of decisions. Based on a fundamentally erroneous assumption and couched in language both expansive and overbroad, Dickman permitted the Internal Revenue Service (Service) to attach gift tax consequences to previously untaxed gratuitous transfers of uses of property, ranging from complex corporate asset freezes and grantor-retained income trusts (GRITS) to commonplace loan guarantees among family members. Congress ultimately codified the Dickman result and extended its rationale to the income tax consequences of below-market rate loans. The common thread linking the transactions affected by the Dickman rationale is the taxpayer\u27s failure to act in, and protect, what the Service has ordained to be the taxpayer\u27s objective economic interest, i.e., the failure of the lender to derive an economic benefit by investing the loan proceeds in an interest bearing vehicle. In applying this rationale the Service has extended and fundamentally redefined the traditional notion of taxable gifts. This Article will discuss, critique, and restrict Dickman in the context of its case ancestry and progeny. First, this Article will analyze the legal environment preceding the decision concerning the tax treatment of interest-free demand loans. Part I will discuss how the income tax and gift tax systems are interrelated. Part II will demonstrate the courts\u27 consistent failure to properly apply assignment of income principles to gratuitous interest-free demand loans, thereby mischaracterizing their income tax consequences. This failure has resulted in a fundamental flaw in the stated tax policy rationale which underpins the Supreme Court opinion in Dickman. Part III is a historical review and analysis of cases dealing with the gift tax consequences of such transactions. Part IV addresses the Service\u27s subsequent extension of Dickman\u27s rationale to corporate freezes, buy-sell agreements, and grantor-retained income trusts (GRITs). This part delineates the uncertainties which taxpayers and tax advisors face concerning this issue in a voluntary self-assessment tax system. Such uncertainties destabilize and undermine the taxpayers\u27 confidence and are detrimental to the administration of the tax code. This effect is particularly acute when a broad and sweeping decision such as Dickman is applied to common gratuitous transfers in familial or neighborly environments. Part V will discuss the potential future application of Dickman by the Service to uncompensated uses of assets other than money commonly afforded family and friends. By analyzing underlying policies, Part VI argues the reach of Dickman can be limited if courts focus on the decision\u27s often overlooked restrictive criteria concerning reasonable valuation of the use of the gifted property
Bedrock Principles, Elusive Construction, and the Future of Equal Employment Laws
No full textPart I of this Article discusses the original limitations of Title VII for plaintiffs, and shows that the Court narrowed the statute further in the above-noted employment cases, among others. It then illustrates what appears to be the Court\u27s methodical and permanent move away from an analytical scheme grounded in the broad remedial purposes of civil rights legislation. The Article documents the Court\u27s constant reliance on “bedrock” Anglo-American jurisprudential principles in deciding cases to highlight the shift from remedial purposes analysis to narrow textual construction as an enduring interpretive standard. The first part further observes that injection of bedrock principles and text-focused analysis into the civil rights area is not theoretically negative, because of abundant deeply-rooted interpretive principles favoring discrimination victims. Further, this part calls on the Court to utilize supportive “American” rules as a symbol of its articulated commitment to civil rights, while abiding by professed constitutional and statutory demands of neutrality, strict scrutiny, and color blindness. Recognizing the potential benefits of textualism, the first part argues that the 1991 Act can thrive under this interpretive methodology if analysis is free of judicial manipulation.
Part II of this Article analyzes the legislative proposals and demise of the Civil Rights Act of 1990, then proceeds to evaluate the subsequent competing proposals that ultimately forged the 1991 legislation. The actual impact of the 1991 Act on Supreme Court decisions narrowing Title VII is carefully considered in an attempt to predict what actual gains were made for employees that are discriminated against. This part also discusses other legislative gains that in many instances were not tied to specific Court rulings. Part II concludes that while many significant gains were made for discrimination victims, the 1991 Act is not a panacea, as partly evidenced by continuing legislative battles and judicial disagreement.
Part III studies the thorny problem of determining when the Act takes effect. In this part, the Act\u27s language and structure are evaluated, as well as its legislative history and various court decisions construing it. This evaluation will highlight the internal conflicts of the text, the contradictory statements of legislators, and conflicting interpretations of judges. Although the Court has not articulated clear *318 rules on the subject of retroactivity, this part predicts a construction disfavoring retroactivity and subordinating the interest of employees, despite the availability of substantial legal and policy reasons countenancing a different result.
Part IV analyzes the Court\u27s fractured jurisprudence on affirmative action in employment cases, and the evolution of solid judicial and popular theoretical opposition to remedial schemes. This part specifically considers the effect of the 1991 Act on affirmative action in view of the concerted effort by legislators to avoid this issue in trying to secure passage of the 1991 legislation. Predicting a bleak future for affirmative action, attention is also given to reparations, a doubtful but increasingly discussed remedial device. In view of popular judicial, legislative, and executive opposition to preferential schemes, this part concludes that the quest for equal employment may be stifled by a conservative Court, competing national priorities, and changed societal attitudes. This part also concludes that broad-based and powerful opposition to remediation makes forging ties with the Court essential to the success of future civil rights protection
Arbitrating, Waiving and Deferring Title VII Claims
No full textThis Article will look at Gilmer in the context of collective bargaining contracts and evaluate the possible implications of arbitrating title VII disputes for employees, labor unions and the National Labor Relations Board ( NLRB or Board ). To show the potential impact of Gilmer on groups protected by title VII, the experience of racial minorities will be used as illustrations
Comparative Negligence under the Code: Protecting Negligent Banks against Negligent Customers
No full textThis Article will examine modern banking practices with respect to processing checks and the effect of technology on liability for forged or altered checks. Part I describes the magnetic ink character-recognition system. Part II discusses check truncation. Part III recounts the evolution of contract and tort theories of liability from traditional to modern bank practices. Part IV analyzes the new comparative negligence provisions. Part V investigates the standards of ordinary care. Part VI evaluates the respective duties of the banks and their customers in light of the provisions that reflect the banking industry\u27s transformation from the Paper Age to the Electronic Era. Recognizing that the nationwide enactment of revised Articles Three and Four is inevitable, the final Part of this Article discusses the need for and concludes with recommendations for consumer legislation to protect consumers of banking services
Chattel Paper Financing: Metaphysical Property and Real Money
No full textThis Article first examines the operation of section 9-308 with respect to competing claims for the same chattel paper. The current rule subordinates an inventory financer who claims the chattel paper merely as proceeds of the sale of inventory to a chattel paper purchaser who has given new value and taken possession of the chattel paper in the ordinary course of his business. The chattel paper purchaser also prevails over an inventory financer even if the inventory financer has given new value and has relied on the chattel paper, if the chattel paper purchaser acts without knowledge that the specific paper is subject to a security interest. This Article determines that these two rules have been effective to consistently award superior status to the chattel paper purchaser, but questions whether this policy applies to all chattel paper transactions and whether it unnecessarily burdens the system in an era when chattel paper financing is no longer in its infancy. Section 9-308 favors the chattel paper financing industry, promotes conscious ignorance, exempts chattel paper purchasers from the normal obligation to check the record, elevates possession over filing as a means of perfection, and deprives an inventory financer from any meaningful protection afforded by perfecting its security interest in chattel paper through filing a financing statement. If, despite these anomalies, the policy to-protect chattel paper purchasers outweighs the value of a harmonious notice filing system with respect to chattel paper and the tangible goods securing the value thereof, section 9-308 should be revised. Revised Article should plainly state the circumstances under which a chattel paper purchaser will take priority over other creditors. The second part of this Article develops the theme of the chattel paper purchaser as a new value lender who enables the buyer to acquire goods, or the use of the goods through lease chattel paper, and who enables the dealer to acquire the chattel paper from the buyer. Just as purchase money lenders are required to take special steps to minimize harm to prior perfected secured parties, so too, should chattel paper purchasers undertake to establish super-priority by providing notice to interested parties. The third part of this Article analyzes various theories employed by the courts to solve problems that do not fall within the present formulation of section 9-308. These problems arise principally from successive transfers of the tangible goods that are represented by chattel paper and which become particularly acute when the goods reappear in the debtor\u27s inventory. Typically, courts have resolved the ensuing disputes by construing section 9-306(5) with section 9-308. Opinions diverge on issues that are outcome determinative, including the negotiability of chattel paper and the effect of a sham sale on the creation of a security interest in chattel paper, the proper means to perfect a chattel paper purchaser\u27s security interest in the collateral, the exclusion of an inventory financer from the meaning of a creditor or purchaser of the transferor in section 9-306(5)(d) the nature of returned or repossessed goods, and the classification of tangible goods as proceeds of chattel paper. The Article concludes that the repetitive nature of the problems, and the divergence of judicial action, both in opinion and in result, manifest a need to revise sections 9-306 and 9- 308 to restore uniformity and promote fairness. Accordingly, the final part of this Article summarizes available options and recommendations for reform raised in the discussion of these issues