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Advancing America’s Emblematic Right: Doctrinal Bases for the Fundamental Constitutional Right to Vote Per Se
Get PDFThis Article identifies and examines the Supreme Court’s longstanding unintelligibility with respect to recognition of a fundamental right to vote per se under the Constitution. In a host of equal protection cases, the Court’s refusal to “say what the law is” in this regard has produced a chaotic jurisprudence on the status of the right. Because ours is a constitutional schema consisting of multiple types of rights to vote, the refusal manifests as judicial reliance on and acclamation of some unspecified right to vote. It is refusal by lack of clarity. The unsorted right has led some scholars to conclude that there is a fundamental constitutional right to vote per se. But, a close and by-the-book reading of the pertinent cases shows that the Court has never recognized the latter and provided in its stead a placeholder of counterfeit worth.
This Article proposes a course correction. To that end, the Article provides an in-depth analysis of additional constitutional provisions, any one of which would serve the Court well in definitively recognizing a fundamental right to vote per se. Such recognition is not just a matter of clarifying constitutional doctrine, important as that is. The advent of the new right, by championing and amplifying the body politic’s voice on America’s future, should operate as a counteractant against the anti-democratic pressures assailing us
Florida’s Market-Based Property Reforms and Revocation of One-Way Attorney Fees: Implications for Florida Policyholders
Get PDFThe recent turmoil in the Florida property insurance market has pushed the Florida legislature to take affirmative action to restabilize the market. But as Florida continues to enact market-based insurance reforms, residents are left to suffer the consequences, especially where the reforms incentivize insurers to unreasonably deny coverage and leave residential policyholders without recourse. The purpose of this Article is to highlight those consequences, including the difficulty of litigating residential property coverage claims under Florida law
Proving Intra-Racial Discrimination in the U.S. and Canada: The Room for Making the Artificial Distinction Between Genealogical Relatedness and Race
Get PDFThis article takes the role of the Devil’s advocate in order to question the judicial willingness to distinguish “race” from comparable notions. It suggests that, depending on the exact circumstances, a defendant can make an arguable case that the alleged intra–racial discrimination is motivated by perceived genealogical relatedness, but not because of belonging to the same “race.” Factually, the defendant claims to believe in being remotely genealogically related to the plaintiff. This is not unworthy of credence, because it is academically recognized that modern genealogy and root tracing can be an imaginative, forged exercise. Legally, this argument is supportable because there are cases holding that “race” or “ancestry” is different from genealogy or “line of descent.”
By contrast, such an argument would not work in Canada, because Canada has adopted an expansive interpretation of the impermissible grounds. In particular, Canada includes “ancestry”—despite the fact that it is not explicitly included in their statute—on the grounds of “race”, “ethnicity” and “family status.” This covers more situations that resemble intra–racial discrimination, such as discrimination based on remote or close bloodline (un) relatedness. However, whilst the U.S. courts claim to have adopted a liberal interpretation, they also openly oppose expanding the law and have therefore narrowly interpreted “ancestry” and other impermissible grounds. This makes proof more difficult and leaves open gaps of protection in the U.S
The Law of the Territories of the United States in Puerto Rico, the Oldest Colony in the World
Get PDFThe territorial law and policy of the United States changed towards the turn of the 20th century, as territorial expansion was no longer motivated by the extension of national borders, but by geopolitical, strategic and economic objectives. The new territories acquired in the Spanish American war were different from those previously annexed. The resulting constitutional doctrine of the Insular Cases differentiated the previous incorporated territories from the new unincorporated territories, which were not destined to be part of the U.S. nor to be admitted as new states. Despite purported changes in the relation with the United States in 1950-1952, Puerto Rico is still an unincorporated territory, subject to plenary territorial powers without its participation in the government of its sovereign. During the second half of the twentieth century, the international law of human rights has recognized the right to self-determination of all peoples. As a result, the constitutional law of early twentieth century is at odds with the international legal obligations of the United States arising from customary law and those assumed under the International Covenant on Civil and Political Human Rights, which entered into force for the United States three decades ago. This article presents substantive and procedural avenues for the harmonization of U.S. constitutional law with international law through the exercise of the right of self-determination by the people of Puerto Rico
To the Court of Last Resort: A Prosecutorial Roadmap in the Aftermath of State Violence in Chile and Colombia
Get PDFA great deal of academic research and writing has been done on the most glaring examples of war crimes and crimes against humanity. But, only a small cadre of authors have endeavored to identify the ‘lower limit’ of when state action qualifies as these heinous acts. This Note strives to add to that area of legal scholarship aimed at bringing instances of in-country state perpetrated violence out from the behind the veil of sovereign police action and into the spotlight to call them what they are: crimes worthy of international condemnation and punishment. Specifically, this Note unpacks two spasms of state level violence—Chile’s in 2019 and Colombia’s in 2021––both of which occurred in response to public protests and unrest. In doing so, this Note compares the facts of those events where national police forces and militaries were deployed against civilian protestors and highlights leading case law from international tribunals and regional human rights courts. Further, this Note applies those facts and persuasive cases to the Rome Statute of the International Criminal Court as the relevant controlling treaty law for war crimes and crimes against humanity prosecutions. As a result, this Note runs its course as an academic ‘how-to’ guide for those interested in and committed to seeing the most powerful face justice for their actions and those of their subordinates at the International Criminal Court
Communities That Care : Incorporating Socially Engaged Artistic Practices into Clinical Legal Education
Get PDFThis Article, co-authored by a law school clinician and an artist and lawyer, explores collaborations between the artist, a child advocacy clinic, and its clients (children in state foster care) in building a community that empowers clients by giving them voice through both traditional legal advocacy and non-traditional forms of socially engaged artistic expression. The Article aims to address some of the challenges and benefits of clinics creating alliances with artists and community-based arts organizations as part of their teaching and advocacy missions. We describe and provide examples of the practice of law as a creative exercise and argue that importing creative perspectives and approaches into a clinic can enrich the students\u27 learning experience. We also consider how incorporating socially engaged artistic practices into legal advocacy for clients and client communities served by clinics gives them their own space to participate in their cases on the margins of the lawsuit, outside of the courtroo
Drug Courts: The Risk of an Increased Number of Drug-related Arrests and Long Jail Sentences
Get PDFIn June 1971, President Richard Nixon declared a War on Drugs. As the War on Drugs continued throughout the 1980s, drug-related convictions increased, leading to overcrowding in prisons across the United States. Drug courts operate as an alternative to incarceration in which criminal defendants enter court mandated drug treatment programs. Judges monitor the progress of drug court participants through scheduled status hearings. However, contrary to their purpose, drug courts may contribute to incarceration by presenting the risk of an increased number of drug-related arrests in those jurisdictions that have implemented drug courts and long jail sentences imposed as sanctions for repeated violations. This Article explores solutions to curb the potential drug-related arrests and long jail sentences, namely (1) the decriminalization of drug offenses, (2) providing greater funding to outside treatment programs, (3) removing incarceration as a sanction, and (4) permitting violent offenders to enter drug court programs
