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Extraterritorial Reach of the Great Writ at Common Law: The Constitution Guarantees the Guantanamo Bay Detainees a Right to Habeas Corpus
Get PDFMoney, Fear and Prejudice: Why the Courts Killed Terri Schiavo
Get PDFOn March 31, 2005, thirteen days after the court-ordered removal of her feeding tube, Theresa Marie Schindler Schiavo (Terri) died from dehydration. At the time of her death, Terri did not suffer from a terminal condition; if provided with nourishment, her life expectancy was at least ten years. Since February 1990, Terri had been unconscious. Terri left no living will or written directive as to her wishes. Family members vehemently disagreed as to whether Terri, raised in the Catholic faith, would have wanted her feeding tube removed. To legally end Terri\u27s life, Florida law required the person petitioning for her death to provide clear and convincing evidence that Terri wished to die in order to overcome the presumption in favor of life. Terri\u27s situation eventually received extensive media coverage, but only several years after Florida Circuit Judge, George W. Greer, had signed the February 2000 order to end her life. Even before hearing any evidence as to Terri\u27s wishes, various judges effectively decided in favor of death by approving the use of Terri\u27s money to fight for her death. Beginning in 1997 and before any court had legally determined Terri\u27s wishes according to Florida law, various Florida state judges authorized Terri\u27s husband, Michael Schiavo, to use Terri\u27s funds to finance the death fight. These funds came from various malpractice suits filed by Michael on Terri\u27s behalf. As a result of those suits, in November 1993, Terri\u27s assets were valued at 713,825; less than four years later, as of June 2001, only 40,000 and $50,000 remained. Terri died a pauper. At the pivotal hearing of January 2000, the only actual evidence of Terri\u27s wishes consisted of casual hearsay statements made by Terri to various family members and a friend of Terri\u27s from the 1980s. Faced with a lack of hard evidence, the trial court relied on expert testimony as to how Americans in general feel about death. The trial court even heard the testimony of a priest, who had never met Terri, to establish the extent of Terri\u27s Catholic faith and the Church\u27s position on withholding nutrition from an incompetent. Subsequently and inevitably, on February 11, 2000, Judge Greer issued his order sealing Terri\u27s fate ( Death Order ). The State of Florida failed Terri yet again when its appellate courts allowed these errors to stand. Appellate review was limited in the early, crucial years of the battle for Terri\u27s life. Terri\u27s parents appealed the Death Order, which contained critical factual findings, to the Second District Court of Appeal. With little discussion, the court affirmed that part of the order determining Terri\u27s wishes and, remarkably, the Florida Supreme Court refused to even review that decision. With little deliberation and amazing speed, the federal courts offered no further protection. The media also failed Terri on a grand scale, by neglecting to accurately report the facts of Terri\u27s case or to identify and analyze the applicable law. The media conducted faulty and legally irrelevant polls showing that most Americans thought Terri should die. As one commentator concluded, media malpractice was committed in regard to the Schiavo case. This same media was noticeably missing in the early years of the battle over Terri\u27s life-the key years. With the exception of the St. Petersburg Times and the Orlando Sentinel, the media did not report on the battle for Terri\u27s life, which began in 1993, until many years later. In those early years, however, forces were put in motion that ultimately sealed Terri\u27s fate. Due to the lack of media coverage of these early events, the public was kept ignorant of these crucial, earlier forces. The media never investigated these earlier forces or questioned the factual findings determined in the early proceedings. Why did the courts allow Terri\u27s money to be spent to fight for her death and not for her life? Why did the courts fail to appoint an attorney for Terri? Why on the basis of such questionable evidence did the courts authorize the killing of Terri? Why did most members of the media support Terri\u27s killing and sway the public to also support the killing? This article posits that fear and prejudice, combined with the use of Terri\u27s monies to fight for her death and the lack of independent legal representation, inexorably caused her death. The judicial system failed to follow the rule of law. The media failed to fully report the facts. The public failed to understand the facts and the law. Does any of this matter? After all, Terri is dead. Nothing can bring her back. But it still matters. It matters because under Florida law the real issue is what Terri would have wanted, not what any of the rest of us might have wanted in her situation, and certainly not what any of us fear might happen to us. It matters because we are still alive, and any of us could find ourselves in Terri\u27s situation. We deserve decisions based on the rule of law, not based on which side is better funded, not based on the fear of living like that, not based on a prejudice against those who do. Fortunately, by implementing a few modest proposals, we can ensure that the rule of law prevails in the future, even if it did not do so for Terri
Who is a Terrorist - Drawing the Line between Criminal Defendants and Military Enemies
Get PDFThe threat of terrorist attacks by al Qaeda and other transnational terrorist organizations is a constant topic of public discourse in the United States. Despite its prominence, the nature of that threat is notoriously difficult to define. On the one hand, terrorists might be compared to other kinds of organized, dangerous criminals who should be prosecuted and punished using the federal criminal law. On the other hand, terrorists might be compared to enemy soldiers engaged in warfare against the United States. There are problems with either approach, however, because the threat posed by al Qaeda and other transnational terrorist organizations is substantially different from both paradigmatic criminal activity and paradigmatic military conflict. Accordingly, it is far from clear whether alleged terrorists should be treated as criminal defendants or military enemies. The definitional problem is made even more complicated by the reality that the terrorist threat has many components. The organization itself, such as al Qaeda, is a danger. So too are the leaders, commanders, and strategists who plan and manage plots to carry out terrorist attacks, and the operatives and agents who commit or try to commit them. Many other individuals play roles in terrorist activity, as well. Some individuals may assist in the preparations for an attack by providing weapons, bombs, information, or surveillance. Other individuals might provide safe houses, transportation, or financing to those involved in a planned attack, but have no direct role in the actual anticipated violence. Finally, some individuals may support the overall objectives of the terrorist group with money or other general resources, yet have no personal involvement in, or even knowledge of, any particular plan to carry out specific terrorist acts. Are all of these individuals terrorists because of their involvement, at some level, in the activities of al Qaeda or another transnational terrorist organization? Are only some of them terrorists and others not, and potentially subject to differential treatment based on their level of participation? Most importantly, which of these individuals are properly deemed military enemies subject to military authority, including identification as targets of military force, detention as military prisoners, and prosecution in military proceedings? Likewise, which of these individuals must be deemed criminal defendants subject to prosecution and punishment under criminal law in civilian courts? The U.S. federal criminal law and the international laws of war provide alternative models for answering these difficult questions. The criminal model presents one framework for defining the threat of terrorism, primarily focused on the prosecution and punishment of individuals for their alleged terrorist activities. The military model offers another framework, emphasizing the dangers posed by an organized armed force engaged in planning and carrying out acts of war. Each model provides options for pursuing the dual objectives of preventing terrorist attacks from occurring and punishing individuals involved terrorism, whether one plans or commits acts of terrorism or supports the operations of terrorist organizations. Yet in their currently existing forms, neither model is adequate to fully address the nature of the threat posed by al Qaeda and other transnational terrorist organizations. The criminal and military models each provide insights into the nature of the terrorist threat, identifying particular aspects of the problem that most closely resemble their respective paradigms. Each model also has shortcomings in defining the threat. Both models struggle to balance the relative importance of personal conduct and group affiliation, assessing the dangerousness and culpability of individual terrorists and the broader organizations of which they are a part. Thus, neither model, standing alone, adequately addresses all aspects of the problem. The solution is to combine the criminal and military models into an integrated model for defining the threat of al Qaeda and other transnational terrorist organizations. This new model identifies which individuals with involvement in or connections to terrorists should be treated as criminal defendants and which individuals should be deemed military enemies subject to military authority. In doing so, this integrated model pursues the dual objectives of prevention and punishment by using the insights of the criminal and military models to compensate for their respective shortcomings. It balances the importance of personal conduct and group affiliation by reserving the most substantial consequences for activities dependent on direct, personal involvement. An integrated model also can fully account for the particular dangers that exist because al Qaeda is a form of organized armed force, and the substantial implications that fact holds for the nature of the terrorist threat. This integrated model concludes that most individuals involved in terrorism should be treated as criminal defendants, and that only the most dangerous direct participants should be deemed military enemies. Through this analysis, the integrated model resolves the problems with the existing criminal and military models and fully addresses the threat posed by al Qaeda and other transnational terrorist organizations
Africa: Mapping New Boundaries in International Law
No full textThe principal aim of this work is to provide a forum for leading international lawyers with experience and interest in Africa to address a broad range of intellectual challenges concerning the contribution of African states and peoples to international law. As such, the volume addresses orthodox topics of international law - such as jurisdiction and intervention - but tackles them from an African perspective, and seeks to ask whether, in each case, the African perspective is unique or affirms existing arrangements of international law. The book cannot come at a more important time. While international legal discourse has been captured by the challenge of terrorism since September 11, 2001, there are clear signs that other issues are returning to the fore. Political interest in Africa has undergone a global revival, and the OAU has been transformed into the African Union. Infrastructural challenges, along with those taking place in regional contexts, have effectively mapped a new politico-legal landscape for Africa. This, and more, is explored, and the key normative questions are addressed in a series of essays by leading Africanist scholars.https://commons.law.famu.edu/faculty-books/1005/thumbnail.jp
Massachusetts v. EPA and the Future of Environmental Standing in Climate Change Litigation and Beyond
Get PDFThis Article focuses on the future scope of environmental standing after Massachusetts v. EPA. Injury in fact has been and remains the most controversial component of the environmental standing test within and outside the context of global environmental harms. Part I of this Article discusses the background context of environmental standing for global environmental harms and its corresponding origins in procedural and substantive injury claims in cases involving purely domestic environmental harms. Part II examines the landmark decision in Massachusetts v. EPA and considers how it confirms and extends standing jurisprudence for global environmental harms, yet fails to resolve some important questions in interpreting the effect of the decision on environmental standing in future cases. Part III examines the potential ramifications of Massachusetts v. EPA on the narrower context of pending and future climate change litigation, whereas Part IV analyzes the decision\u27s potential implications on environmental standing more generally in contexts beyond climate change litigation. The Article concludes that environmental standing jurisprudence will continue to play an important part in enabling citizens to identify and seek relief for climate change impacts; however, it must do so in a way that draws on risk assessment methodology to confirm the validity of the risk-based theories that litigants allege to avoid the potential for an unwelcome flood of claims that the courts are not qualified to address
Privacy, Authenticity, & Equality: The Moral and Legal Case for the Right to Homosexual Marriage
Get PDFModel Jury Instructions: Copyright, Trademark and Trade Dress Litigation Model Jury Instructions: Copyright, Trademark and Trade Dress Litigation
No full textThis addition to the Model Jury Instructions series, published by the ABA Section of Litigation, provides clear and balanced instructions for presentation to juries in copyright, trademark and trade dress litigation. These models accurately and impartially present the elements and critical definitions of copyright, trademark and trade dress law in language that is understandable and familiar to the average juror. The book includes a CD-ROM of the jury instructions that allows for easy adaptation to particular cases or points. Chapter introductions give overviews of the current state of the law, including the major recent cases in most jurisdictions, with discussions of the practical issues you might have to consider. Individual instructions are followed by commentary that includes discussion of the cases from which the instruction was derived, as well as how and when to adapt the instruction to particular cases, to the laws of particular states, to the requirements of particular jurisdictions, or in the light of inconsistent authority. Besides making it easy to present first-rate instructions, the models and supporting citations give you an excellent starting place from which to investigate the nuances of a particular jurisdiction. This book gives you the framework for preparing and trying your case, from analyzing the fact situation and planning strategy to preparing your final argument.https://commons.law.famu.edu/faculty-books/1040/thumbnail.jp
Slipping Through the Cracks and Into Schools: The Need For a Uniform Sexual Predator Tracking System
Get PDFOver half a million registered sex offenders currently live in the United States. Sex offenses are among the most devastating crimes because of the long-lasting emotional, physical, and psychological effects it has on victims. Sadly, most victims of sex offenses are innocent children. Most sex offenders are not in prison, and ... are largely unknown to people in the community. Sex offenders also have a propensity for reoffending their crimes. While community supervision and oversight is widely recognized as essential, the system for providing such supervision is overwhelmed. There are many loopholes in the current system that allow sex offenders to slip through the cracks unnoticed. Many predators remain undetected because law enforcement lacks the resources to track their whereabouts. There is need for a uniform system to track sex offender/predators. A uniform system would provide consistency for registration and community notification of the presence of sex offenders, thereby decreasing the chances of future victimization of innocent children. Several states now have their own systems in place, but new systems with improved technology are needed to track offenders as they wander from state to state. Failure to track these serious offenders will leave them free to continue assaulting victims
Automobile Emissions and Climate Change Impacts: Employing Public Nuisance Doctrine as Part of a Global Warming Solution in California
Get PDFThe battle against climate change and its impacts in the United States must be waged on many fronts and requires many weapons. Until the federal government provides a comprehensive and mandatory legislative response to the climate change problem, gap-filling efforts such as regional, state, and local legislative initiatives and climate change litigation will be essential to achieve some progress in the ongoing challenge to combat the causes and effects of climate change. This Article focuses on one of those gap-filling efforts: public nuisance suits against power companies and automobile manufacturers for the climate change impacts caused by emissions from those entities. Part II of this Article discusses the origins of public nuisance doctrine and the evolution of public nuisance claims as a vehicle for environmental litigation. Part III examines climate change as a new context for public nuisance litigation. It considers the political question doctrine as a possible obstacle to public nuisance claims for climate change impacts through an exploration of recent case law, culminating with the district court decision in California v. General Motors. Part IV analyzes preemption arguments and state law public nuisance arguments raised in California v. General Motors. Part V evaluates legal and policy arguments that maintain that public nuisance claims for climate change impacts may be an improper expansion of public nuisance doctrine. The Article concludes, contrary to the district court\u27s conclusion in California v. General Motors, that California\u27s strategy in seeking damages rather than injunctive relief in this case avoids possible political question and preemption pitfalls and is an appropriate and viable avenue for future public nuisance claims seeking recovery for climate change impacts
