STU Scholarly Works (St. Thomas University)
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Estates in Land and Future Interests: Examples and Explanations
No full texthttps://scholarship.stu.edu/faculty_books/1026/thumbnail.jp
Judicial Versus Legislative Charting of National Economic Policy: Plotting a Democratic Course for Minority Entrepreneurs
No full textHistorically, minority participation in entrepreneurial activities in the United States has, for the most part, been negligible or non-existent. In theory, the emancipation of American blacks from slavery should have resulted in increased opportunities for blacks to participate in the country\u27s industrial development and growth. Although a variety of \u27disadvantaged firms\u27 have emerged since the 1970s, l purposefully discriminatory schemes ensured the exclusion of blacks and other minorities from America\u27s free enterprise economy
Law and Peace in A Changing World
No full textDesigns for peace among nations have abounded throughout the course of history. The most successful plans harnessed the self-interest of ruling elites in the communities of the world. Rational leadership was a crucial factor in their success. Common global cooperation in minimizing the use of violence was, and is, the most difficult goal to achieve. It requires careful analysis of claims, claimants, perspectives, identifications, and other contextual factors. Cordell Hull was a master at that. Figures of no lesser stature than Franklin Roosevelt and Dean Acheson have called him the father of the United Nations. He was, in a true sense, not only present at the creation of a viable international security system; he was greatly influential in shaping it. He richly deserved the Nobel Peace Prize awarded to him in 1945. The purpose of this article is to honor the memory of Cordell Hull by analyzing the framework, policies and moving factors in the process of authoritative decision-making of the use of violence or persuasion on the global level, as well as to present alternatives for its improvement
Hard Cases and Human Judgment In Islamic and Common Law
No full textEvery legal system in tune with the living practical reality of societal change experiences the need for corresponding change within. This change does not proceed in a predetermined orderly fashion. Human judgment plays a significant role in the reasoned elaboration of the law, in order to address the multivarious situations presented by the human condition; yet this change must be implemented within channels of reform that are recognized as legitimate in order to maintain acceptance and stability. Arbitrary personal opinion is never acceptable in a legal system where the rule of law prevails. This article will explore different modes of legal reasoning in Islamic law. After defining and rejecting arbitrary decision-making as a recognized mode of legal reasoning, it will discuss three other modes that are recognized as legitimate in Islamic law - qiys, istihsin, and islislih. These modes of legal reasoning involve human judgment and may generate different results when applied by different jurists. The purpose of this discussion is to compare similar modes of legal reasoning in the common law with those in Islamic law. Such a comparison will reveal the tension between flexibility and constraint that defines the whole legal process
Equal Protection: The Jurisprudence of Denial and Evasion
No full textThis Article begins with a discussion of Supreme Court equal protection jurisprudence that regularly has denied, evaded, and accommodated racism and racial discrimination. It next demonstrates how the analytical methodology of avoidance persists as a central feature of modern review. Finally, the Article proposes a jurisprudential course of action that confronts racial realities and effectively accounts for minority interests consistent with societal traditions and expectations
Equal Protection and the Rehnquist Court: Compounding a Legacy of Constitutional Vagrancy
No full textThis essay will (1) examine the Rehnquist Court\u27s equal protection renderings within the historical context of racial jurisprudence; (2) consider the theoretical potential for doctrinal development accounting for racial injustice; and (3) trace a likely path of further equal protection devolution that most probably will define the Rehnquist Court\u27s legacy
Liability for Manufacturers in Washington: When Is Strict Liability Appropriate
No full textProduct liability law has been a subject of intense debate and substantial legislative attention in the last two decades. Many states have proposed or passed product liability reform statutes; President Bush has announced that he will propose product liability reform legislation. As Victor Schwartz\u27s article demonstrates, the continued viability of strict liability is one of the major issues addressed in product liability reform proposals. Schwartz distinguishes between strict liability and what he calls super strict liability ; he then suggests the abandonment of super strict liability, and a return to common sense, a trend he finds already evident in the court decisions and legislation of many jurisdictions. Alas, Washington is not among them. The Washington Supreme Court\u27s interpretation of the Tort Reform Act of 1981, by continuing to apply strict liability to design and warning cases, appears to be in retrograde motion relative both to Schwartz\u27s vision of common sense, and to the ideals articulated in the Tort Reform Act of balance in product liability cases. Nonetheless, it is easy to exaggerate the significance of the strict liability standard, which differs from negligence largely in the use of hindsight - knowledge about the product acquired since the time the product was marketed. This article suggests that sound public policy should continue to use the negligence standard as the primary benchmark of tort liability, but that hindsight can fairly be used when the product presents a risk unknown to the manufacturer-so long as that risk was also unknown to the consumer. To develop this thesis, this article first traces the history of the development of strict liability prior to the adoption of the Washington Product Liability Act. Next, the statute itself is analyzed, revealing the legislature\u27s apparent confusion about whether it wanted to include hindsight in the evaluation of design defect and warning cases. Then the focus shifts to an analysis of why negligence usually provides the best balance between consumer safety and efficiency but is neither fair nor efficient when dealing with risks unknown to the consumer-even if those risks were also unknown to the manufacturer. This article then recommends the use of the negligence test in all product design and warning cases, so long as the risks associated with the product were known to the manufacturer. However, where a risk was unknown to the manufacturer-and thus presumably unknown to the consumer as well-the jury should be instructed to impose liability on the manufacturer if a reasonable manufacturer would not have sold the product knowing of the additional risk
