Law Commons^™

Tort Liability For Parents Who Choose Not To Vaccinate Their Children And Whose Unvaccinated Children Infect Others, Teri Dobbins Baxter

Scholarly Works

This article explores whether parents can or should be civilly liable for damages when (1) their unvaccinated child contracts a disease that would have been prevented by an available and recommended vaccine, and (2) those children infect others who were either vaccinated (but who failed to develop immunity despite the vaccination) or were unable to be vaccinated because of their age or other medical conditions. In the past, concerns about establishing causation have discouraged discussions about liability. However, in several recent cases public health officials have been able to identify the source of outbreaks. Furthermore, outbreaks of diseases that had …

Preparing The Transactional Lawyer: From Doctrine To Practice, George Kuney

Scholarly Works

No abstract provided.

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 25, Issue 2, Spring 2013.

Till The Detail Of Surface Is In Accord With The Root In Justice: Treason, Insanity, And The Trial Of Ezra Pound, Milton Hirsch

St. Thomas Law Review

For most of his adult life Ezra Loomis Pound, Idaho-born and Pennsylvania-reared, was an American abroad. At various times he lived in Venice, London, Paris. In 1928, he settled in Rapallo, in Italy. When World War II broke out, he chose to remain there. Beginning in October of 1941, and through at least July of 1943, he made a series of English language broadcasts from Rome for the Mussolini government, which were directed to English and American audiences. In 1945, Pound was taken into custody by American military authorities and held at the U.S. Army Disciplinary Training Center in Pisa. …

Implications Of United States V. Jones On Dna Collection Form Arrestees: Trespass Prohibited By The Fourth Amendment, Angelique Romero

St. Thomas Law Review

This comment discusses the constitutionality of warrantless DNA collection from arrestees, and proposes an analysis that the Supreme Court should use when deciding on this issue to find that this practice violates the Fourth Amendment. Part II of this comment discusses the general development of DNA collection laws, how the laws have expanded to include persons that have been arrested but not convicted of certain crimes, and the procedures used to collect the DNA samples. In addition, Part II includes a survey of the conflicting decisions by courts across the country and demonstrates the disagreement over the constitutionality of this …

The St. Thomas Law Review: Its Ideal And Its Accomplishments (Introduction)

St. Thomas Law Review

No abstract provided.

Regression To The Mean: How Miranda Has Become A Tragicomical Farce, Alfredo Garcia

St. Thomas Law Review

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on …

Examining Committee Reports As A Basis To Dismiss Petitions To Determine Incapacity: A Question Of Admissibility And Evidentiary Relevancy, Enrique Zamora, Andres Vasquez

St. Thomas Law Review

This article will focus on answering two issues that play an important role in the determination of the need of establishing a guardianship for an AIP. Specifically, (1) whether the requirement that a petition to determine incapacity be dismissed if two examining committee members opine there is no incapacity, in violation of Florida's Evidence Code as well as Chapter 744's requirements; and (2) whether examining committee reports, without testimony, are hearsay under Florida's Evidence Code, section 90.803 of the Florida Statutes, and usurp judicial discretion under section 90.703. Part I will delineate the problem associated with section 744.331(4) of the …

A Holistic Approach To Planning For The Aging Same-Sex Couple: Special Considerations In Light Of The U.S. V. Windsor Decision, Melissa Lader Barnhardt, Jessica M. Lillesand, Denise A. Lettau

St. Thomas Law Review

On June 26, 2013, the US Supreme Court found Section 3 of the Federal Defense of Marriage Act' ("DOMA") unconstitutional. DOMA was signed into law in 1996 by President Clinton. DOMA came into existence as fears arose that the state of Hawaii would start a trend as the first state to recognize same-sex marriage. DOMA was created to avert "an assault against traditional heterosexual marriage laws." Now that this section has been struck down, married members of the Lesbian, Gay, Bisexual, and Transgendered ("LGBT") community will be privy to the same federal benefits that their heterosexual colleagues have historically enjoyed …

Advance Health Care Directives: Problems And Solutions For The Elder Law And Estate Planning Practitioner, Brooke M. Benzio

St. Thomas Law Review

"Remember that what you possess in the world will be found at the day of your death to belong to some one else; but what you are, will be yours forever. "' -Henry Van Dyke.

Since the modem movement for patient autonomy began gathering steam in the 1900s, individual concerns about the purpose, nature, and quality of medical care have become a larger component of the practice of medicine. However, state and federal law has been relatively slow to respond, and establishment of the relevant legal framework is relatively recent. New Jersey courts led the charge with their decision in …

Standards And Basic Principles Of Examining And Evaluating Capacity In Guardianship Proceedings, Stephanie Villavicencio, Alex Cuello

St. Thomas Law Review

In the realm of guardianship law, an elder law attorney is well aware that a declaration of incapacity may strip an individual of more rights than that of a convicted felon. The concept of whether capacity is a matter of fact or law is often debated. The framework for establishing standards governing which rights warrant removal is tenuous and complex. A factual determination of incapacity requires a finding, by clear and convincing evidence, that the Respondent, or alleged incapacitated person, is both functionally unable, either wholly or partially, to care for their person (self) and/or property. This determination culminates in …

Medicaid Managed Long-Term Care: Is Florida Ready, Rebecca C. Bell

St. Thomas Law Review

Medicaid is a nationwide health insurance program, created in 1965 as Title XIX of the Social Security Act for the poorest and sickest individuals. The Medicaid program operates through a federal and state partnership with the Centers for Medicare and Medicaid Services ("CMS") providing federal oversight. States must provide coverage of certain groups and services in order to receive federal funds for their Medicaid programs. However, states may include additional "optional" groups and services in each state plan. States use different methods of service delivery to Medicaid beneficiaries. In July 2011, a national average of 74.22% of Medicaid beneficiaries were …

Filial Responsibility: Breaking The Backbone Of Today's Modern Long Term Care System, Twyla Sketchley, Carter Mcmillan

St. Thomas Law Review

This article will briefly discuss the development of filial responsibility in the United States, the government programs that have displaced it, and its modem day application, including the ambiguity that creates problems for indigent elders' family members and care providers. This article will outline the current long term care system, including its costs and the government and private programs that primarily assist consumers with these costs. It will end by arguing that enforcement of filial responsibility unfairly targets the informal caregiving structure that is the backbone of today's modem long-term care system, which is why filial responsibility is unsustainable today. …

The Pitfalls Of At-Will And Just Cause Employment: A Comparartive Analysis Of Employment Law In The United States And Colombia, Alejandro Gutierrez

ILSA Journal of International & Comparative Law

In March 2012, fourteen employees from a South Florida law firm were fired for simply wearing orange-colored shirts to work.

Booklet Of Selected Theses From The Ma In Criminology, Ma In Law, Ma In Child, Family And Community Studies, And The International Masters In Early Childhood Education, 2010-2012, Matt Bowden, Carmel Gallagher, Kevin Lalor

Dissertations

This booklet highlights and celebrates the research work of graduates from taught Masters programmes in the School of Social Sciences and Law:

• the MA in Criminology

• the MA in Law

• the MA in Child, Family and Community Studies

• the International Masters in Early Childhood Education, co-delivered with Oslo and Akershus University College of Applied Sciences (Norway) and the University of Malta (Malta).

The MA in Criminology and the MA in Law commenced in 2006 and the MA in Child, Family and Community Studies commenced in 2007. Each has quickly become established in its field as a …

Dreading He Knew Not What: Masculinities, Structural Spaces, Law And The Gothic In The Castle Of Otranto, Pride And Prejudice, And Wuthering Heights, Samantha E. Morse

Pitzer Senior Theses

This essay investigates the integral linkages between Gothic spaces and Gothic masculinities in three texts: Horace Walpole’s The Castle of Otranto (1764), Jane Austen’s Pride and Prejudice (1813), and Emily Brontë’s Wuthering Heights (1847). At the core of this examination is architecture, or more specifically, the physical constructions and built environments that comprise a man’s property. I explore how a man uses his property to construct, legitimize, and perform his identity. In the Female Gothic, the home is a place of anxiety for women, where patriarchal dominance and violence reign to constrain female agency. I argue that the home is …

A Short History Of (Mostly) Western Animal Law: Part Ii, Thomas G. Kelch

Animal Law Review

This Article, presented in two parts, travels through animal law from ancient Babylonia to the present, analyzing examples of laws from the ancient, medieval, Renaissance and Enlightenment, recent modern, and modern historical periods. In performing this analysis, particular attention is focused on the primary motives and purposes behind these laws. What is discovered is that there has been a historical progression in the primary motives underlying animal laws in these different periods. In Part I of this Article, it was discovered that while economic and religious motives dominate the ancient and medieval periods, in the Renaissance and Enlightenment, we see …

Book Review, Ralf Michaels

Faculty Scholarship

No abstract provided.

Identities Cubed: Perspectives On Multidimensional Masculinities Theory, Ann C. Mcginley

Scholarly Works

No abstract provided.

The Limited Power Of The Bar To Protect Its Monopoly., Zachary C. Zurek

St. Mary's Journal on Legal Malpractice & Ethics

The weaknesses within unauthorized practice of law (UPL) laws, coupled with shaky and fragmented enforcement, allow nonlawyers to perform activities that are otherwise characterized as the practice of law. Certified Public Accountants (CPAs), non-lawyers representing individuals in administrative settings, legal document preparation services, and other non-lawyers offering detailed legal advice pose serious threats to the bar and the individuals they serve. Uniformed standards of liability, ethics, and certification should be developed to ensure a balanced group of practitioners is available to the public. Pulling nonlawyers into the realm of liability for breach of professional responsibility would result in a higher …

Law And The Fog Of Healthcare: Complexity And Uncertainty In The Struggle Over Health Policy, Paul Starr

Saint Louis University Journal of Health Law & Policy

No abstract provided.

A Holistic Approach To Teaching Work Law, Marion Crain, Pauline T. Kim

Saint Louis University Law Journal

No abstract provided.

Collaboration And Community: The Labor Law Group And The Future Of Labor And Employment Casebooks, Matthew T. Bodie

Saint Louis University Law Journal

No abstract provided.

The Growing Pains Of Graham V. Florida: Deciphering Whether Lengthy Term-Of-Years Sentences For Juvenile Defendants Can Equate To The Unconstitutional Sentence Of Life Without The Possibility Of Parole, Therese A. Savona

St. Thomas Law Review

This article will provide a basic understanding of Eighth Amendment jurisprudence and then explores how the most recent United States Supreme Court cases of Graham v. Florida and Miller v. Alabama affect juvenile resentencing. Additionally, this article addresses the most recent trend presented in juvenile cases where the juvenile defendant is charged as an adult, tried as an adult, and sentenced accordingly. Specifically, the issue of a lengthy term-of-years sentence in states such as California and Florida appear to be the battleground of diverse opinions, more so perhaps than other states.

Powerless Against Police Brutality: A Felon's Story, Tamara F. Lawson

St. Thomas Law Review

Imagine driving to the store with friends, but while en route, you are shot and beaten by the police so severely that random citizen witnesses intervene to stop the police brutality. Next, envision recovering from those injuries and awakening from a coma chained to your hospital bed informed that you are under arrest for attempted murder of a police officer. Then, consider waiting over five years for the opportunity to tell your story to the court, believing justice will be served, but instead you discover that the trial is more influenced by the revelation of your prior criminal record than …

How Consolidating The Circuits Would Have Defined The Borders Of Honest Services Fraud, Jorge R. Delgado

St. Thomas Law Review

No abstract provided.

Pre-Apprendi Sentencing: Issues Surrounding The Retroactivity Of An Unconstitutional Sentence, Priscilla S. Zaldivar

St. Thomas Law Review

This comment ventures to provide a manageable resolution to the issues that have arisen from the implementation and subsequent limitations of the federal sentencing guidelines. Part II discusses the sentencing guidelines' history, creation, and evolution. This part also reviews the pertinent cases that have shaped the relevance and application of the sentencing guidelines by the U.S. Supreme Court. Part III details the successful retroactivity of the Boggs Act as a real-world example of the feasibility of retroactivity. Finally, Part IV provides an administrative solution to the problems with retroactive application of the Booker/Fanfan decision in order to remedy the unconstitutional …

Social Media In The Sunshine: Discovery And Ethics Of Social Media - Florida's Right To Privacy Should Change The Analysis, Spencer Kuvin, Chelsea Silvia

St. Thomas Law Review

The question is whether the liberal discovery rules have gone too far and where the line should be drawn in Florida to protect the privacy interests of individuals from being implicated by overly permissive rules of discovery. Current case law on this issue is informative, but demonstrates that courts need direction on how to decide these complex issues in a uniform manner. The courts that have rendered decisions regarding discovery of social networking sites ("SNS") have made attempts to balance individual privacy interests in the information contained on the SNS with the broad rules of discovery. Focusing on Florida law, …

Long-Term Care Insurance: A Life Raft For Baby Boomers, Enrique Zamora, Deborah Nodar, Krista Ogletree

St. Thomas Law Review

This article begins in Part I by giving a brief introduction to the historical development of long-term care. Part II focuses on what "long-term" care entails and describes the types of individuals who are in need of it. Part III investigates the various costs of long-term care and the sources responsible for paying those costs. Part IV provides a general overview of long-term care insurance. Part V argues that other alternatives to long-term care insurance are not viable options to pay for long-term care. Part VI discusses the implications of the Patient Protection and Affordable Care Act. And finally, Part …

Sixth Amendment Right To Counsel: Broaden The Scope, Decriminalize, And Ensure Indigents A Fair Chance In Court And In Life, Maria C. Pena

St. Thomas Law Review

Part I of this comment explains the history of the Sixth Amendment and the right to counsel, beginning at English common law through the current status of the right. Part II discusses the collateral consequences and social stigma an individual is faced with after conviction of a crime, despite the fact that the accused was not sentenced to jail. Part III summarizes the current problem an ex-convict faces based on the initial denial of assistance of counsel and offers a solution to this problem by explaining that the right to counsel should be extended to all criminal prosecutions. In addition, …