STU Scholarly Works (St. Thomas University)
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The Name Game--Playing to Win Under 9-402 of the Uniform Commercial Code
No full textSection 9-402 of the Uniform Commercial Code\u27 appears to be straightforward and simple to interpret.2 Yet it has provoked extensive litigation, generated thousands of pages of judicial opinions, and created unnecessary uncertainty arising from non-uniform practices and decisions.3 This Article examines the requirements of Section 9-
402, analyzes judicial approaches to the problems arising thereunder with respect to notice, and suggests judicial, administrative and legislative reforms. It concludes that the judiciary should apply a two tier test to interpret § 9-402(8) and deny perfected status in the absence of the availability of actual notice, that the administrative offices should cooperate to establish consistent routine procedures and conventions with respect to filing and retrieval methods, and that the Code should be amended to specifically require the use of the debtor\u27s legal name on the financing statement
Assumption of Risk and Abnormally Dangerous Activities: A Proposal
No full textDespite the widespread adoption of otherwise comprehensive comparative fault schemes, the status of assumption of risk has remained insecure. Courts have had difficulty deciding whether-and how-assumption of risk should apply, as illustrated by a recent case: Sixto Benitez, a high school football player, suffered a broken neck during a varsity football game, leaving him a quadriplegic. He sued the school board and the athletic league, alleging that his coach had been negligent. The school district interposed the defense of assumption of risk.\u27 Courts have treated assumption of risk inconsistently. Some courts treat the plaintiff\u27s decision to engage in risky activities as a bar to any claim; others ignore it by merging assumption of risk with contributory negligence; still others look for a middle path. Even comprehensive schemes for comparative fault have virtually ignored assumption of risk as an independent doctrine. This article proposes replacing the inconsistent treatment of assumption of risk with an approach based on Calabresi and Hirschoff\u27s suggestion that assumption of risk is, and always has been, a kind of plaintiff\u27s strict liability-the other side of the coin of defendant\u27s strict liability. Under such a view, assumption of risk represents a plaintiff\u27s decision to engage in conduct that poses such a high risk of injury that it is fair to make the risk-taker bear at least some of the risk of injury, even when the risk was a reasonable one. The logical extension of this position is to reduce, rather than bar, an otherwise valid claim
A Comprehensive Assessment of Employment Drug Testing: Legal Battles Over Delicate Interests
No full textDuring the past ten years, evidence has mounted that drug and alcohol abuse have critical workplace ramifications. The concern about drugs in the workplace heightened as consumption rose in the 1980s. Employers began paying more attention to data suggesting that their employees might be abusing drugs or alcohol, and that such abuse had, among other things, serious safety and financial implications for their businesses
Home Rule In Florida: A Critical Appraisal
No full textOrdered liberty is the hallmark of American democracy. Since government derives its just powers from the consent of the governed, it follows that the government closest to the people is the one most responsive to their will. The fundamental notion that the citizens of a municipality or other political subdivision should make decisions in matters of genuine local concern, and select their own local officials, finds its natural expression in the concept of the home rule.\u27 In a growing majority of states, a trend has developed in judicial interpretation of state law that favors the grant of powers not exclusively reserved by the state to units of local government. In addition, there has been a parallel trend toward liberal construction of constitutional home rule provisions. Home rule does not mean complete local autonomy; rather it denotes a broad empowerment of local authorities to make and enforce rules in matters of genuine local concern. It does not, in and of itself, bar state legislative intervention into local affairs. Home rule shifts the locus of decisionmaking power back to those in the best position to assess those needs, freeing the state legislature to concentrate on the issues that have a genuine statewide impact. It is a practical response to persistent increases in the demand for fundamental services such as water, sewage, transportation, zoning, and police and fire protection, precipitated by steadily increasing populations- accentuated in Florida as a consequence of the virtual one-way street of migration from the North to the South. The implementation and critical assessment of local home rule in Florida is the focus of this Article. Part I of this five-part analysis is a brief overview of the constitutional development and history of local government in Florida since its acquisition by the United States from the King of Spain in July 1821. Part II focuses on an examination of the Dade County Home Rule Charter Amendment and the constitutional amendment enabling the consolidation of the governments of the City of Jacksonville and Duval County, along with the respective charters enacted pursuant to those special constitutional amendments. Since Dade and Duval may be taken to represent different approaches to local government, their comparison and contrast will produce models that may serve as points of reference in part III. Part III is an analysis of the ten county charters that have sprung into existence since the revision of the Florida Constitution in 1968, which considerably enlarged the potential for preferential constitutional and statutory treatment available to charter counties. Part IV is a synopsis and critical analysis of the charter form of local government as implemented in Florida, taking into account the home rule powers of municipalities and their relation to county home rule powers. Part V will conclude with some suggestions respecting the appropriate roles for municipal, county, and state governments in their shared mission to ensure continued, well-managed growth and prosperity for Florida into the twenty-first century
State Action under the Religion Clauses: Neutral in Result or Neutral in Treatment
No full textSince the affirmative action approach requires close scrutiny of the effects of state action upon religion, it requires courts to make judgments about what theological consequences-either to particular individuals or to a religion as a whole-will follow from whatever state action is being challenged. This kind of theological inquiry has been routinely eschewed in a long series of cases involving church control and other issues. Justice Stevens has identified the overriding interest in keeping the government- whether it be the legislature or the courts-out of the business of evaluating the relative merits of differing religious claims. As Dean Ely has noted, [A]n impact test of any variety would force legislators and administrators to make judgments of just the sort the framers of the First Amendment sought to discourage by the inclusion of the religious provisions. I call this concept the no-entanglement principle. Section II of this Article will briefly review the general outlines of the affirmative action/nondiscrimination dispute, and provide an overview of the major Supreme Court opinions on the religion clauses. Section III reviews the sources of the no-entanglement principle. Then sections IV and V demonstrate the entanglement caused by the affirmative action approach in two areas: (1) the school aid cases, where sectarianness of a school must be measured to determine how much benefit is derived from state aid to education; and (2) the free exercise cases, where theological damage must be measured to determine whether state action has interfered with free exercise. Finally, section VI describes how the alternative approach of nondiscrimination would resolve the very cases that have troubled the Court to date
Using Shareholder Notes to Eliminate Section 357(c) Gain: Lessinger v. Commissioner, 872 F.2d 519 (2d Cir. 1989), Correct Result, Wrong Reason
No full textDespite the rather specific statutory framework of Subchapter C of the Internal Revenue Code, which addresses the tax consequences of corporate formation, the courts have repeatedly been called upon to provide a gloss to the statutes to address situations not contemplated by Congress.\u27 In Lessinger v. Commissioner, the Second Circuit encountered a factual situation that compelled the court to again gloss over the plain meaning of the words in the applicable Internal Revenue Code sections to reach the appropriate result. This Article examines the action taken by the Second Circuit in Lessinger and addresses the propriety of the judicial manipulation of statutory language. Further, it examines whether the court arrived at the correct result by using an incorrect approach. Lastly, the author proposes an alternative to the currently accepted interpretation of the statutory language that would make the Second Circuit\u27s approach in Lessinger unnecessary and would not necessitate further legislative action to bring the factual pattern presented by Lessinger within the ambit of the existing statutory objective
Justification in The Killing of an Innocent Person
No full textJohn Finnis advances the notion of side effect to provide a non-consequentialist approach for justifying certain acts that result in the killing of an innocent person. He depends on the reader\u27s own intelligent grasp of the basic forms of good to convince the reader of the merit of his argument, asking the reader as a first premise to acknowledge merely whether he or she thinks particular values are basic human goods. One of these values is life, and Finnis asks, Life \u27is a good, in itself, don\u27t you think? \u27 To answer this question, Finnis invites his reader to look at the problem from the inside out. An effort of such practical understanding is an effort to grasp and identify the human good of actions in which we participate and from which we derive feelings, spontaneities and behavior. Therefore, if one is to capture the account of human nature that leads one to affirm life as a first basic value, one must not only understand but feel the conflict in the problem of justified killing raised by Finnis. In attempting to reach this state, let me share this scenario with you. Imagine with me that my two children are playing quietly on the balcony overlooking a twenty-story view of our summer resort town. The birds are singing in a blue sun-filled sky when, suddenly, I see the whole balcony quiver and start to fall away from the building. As my children look up in alarm I speed towards the open sliding door. In that split second they start to scramble back towards the door but the balcony is tearing away from the building too fast. I grab for their hands, arms, clothing whatever I can reach. As my hands close firmly over the wrist of one and the shirt of the other, the balcony with a grating shriek of metal and concrete rips from the side of the building. I feel the full weight of my children pull me out the sliding door and as my feet catch the edges of the door I find myself suspended in mid-air with both children dangling at the end of my arms. There is no way I can move to get the children safely back into the apartment. No one else is in the apartment. I call frantically for help and hope that the noise of the balcony falling will attract immediate aid from next door neighbors. After what seems like an eternity, but must be only moments, my children start slipping from my grasp. What to do?! With the children slipping away I have to make a decision. Either I can continue to hold both children, in which case I feel that I would lose them both at the same time, or I can let one child go in favor of devoting my full efforts to the somewhat more realistic chance of saving the other. I release the grip of my left hand. Minutes later help arrives and pulls me and my one child into the apartment. But my other child lies dead on the pavement below. This event did not actually happen. Thank God! But we may dream in dread of such an event happening. I have four children and have puzzled painfully through my feelings in this scenario. Somehow there seems to be no satisfactory answer as to which choice is the better one. In the scenario I had to choose between releasing one child or possibly losing both. I released one, but the fact that the other was saved does not assuage the guilt that arises from participating in an act that leads to the death of the first. I did not have the desire to do that act but I did have the intent. I chose to act in a way that caused the loss of a child\u27s life. Does this guilt suggest that the choice to let one child die in favor of saving the other is wrong and should be punished? I would have felt guilt if I had not let the one child go and both children had fallen from my grasp
An Inquiry into Islamic Influences during the Formative Period of the Common Law
No full textBook: Islamic Law and Jurisprudence
Western scholars consider aspects of Islamic legal concepts and practices. The 11 articles are presented in sections on Islamic jurisprudence, the influence of Islamic law on European legal systems, and Islamic law in contemporary Muslim states. Requires no background in either law or Islamic studies.https://scholarship.stu.edu/faculty_book_chapters/1043/thumbnail.jp
