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Full-Text Articles in Law

Symbolic Counter-Speech, Howard M. Wasserman Jan 2004

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.


Front Matter Jan 2004

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 16, Issue 3, Spring 2004.


Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret Sewell Jan 2004

Freedom From Fear: Prosecuting The Iraqi Regime For The Use Of Chemical Weapons, Margaret Sewell

St. Thomas Law Review

This paper will introduce the Iraqi regime and explore its use of chemical weapons against Iran during the Iran-Iraq War and the Kurdish population in northern Iraq. The effect of the Iraqi regime's use of chemical weapons against these individuals was debilitating, irreversible and, in some instances, is just recently coming to light. This paper will also set forth the relevant evidence that will be used in a prosecution of Hussein and his "most-wanted" associates. A vast array of data has been collected over the past two decades by the United States government, the United Nations and various non-governmental organizations, …


Constitutional Form And Civil Society: The Case Of Jamaica, Harold A. Mcdougall Jan 2004

Constitutional Form And Civil Society: The Case Of Jamaica, Harold A. Mcdougall

St. Thomas Law Review

The nation of Jamaica began a new process of considering amendments to its constitution in 1999.2 Many of the proposals would introduce separation of powers and other similar features of the United States Constitution into the Jamaican constitutional system.3 I visited the Norman Manley Law School in Kingston in 1999 as the first law professor in Jamaica on a Fulbright scholarship. While there, I was asked to teach a course in Comparative Constitutional Law, and the proposed constitutional changes sparked lively discussion. During my lectures, I compared Jamaican constitutional arrangements and civic culture with those of the United States. My …


A Faith-Based Perspective On Tort Causation, Douglas H. Cook Jan 2004

A Faith-Based Perspective On Tort Causation, Douglas H. Cook

St. Thomas Law Review

Causation is among the more difficult concepts dealt with in the law of torts. "There is perhaps nothing in the entire field of law which has called forth more disagreement .... Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the best approach."' The law has, however, settled into at least a few basic concepts. There is general agreement that a defendant's act will not be regarded as a cause of a plaintiffs harm unless it is true that "but for" the defendant's conduct, the plaintiff would not …


Front Matter Jan 2004

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 16, Issue 4, Summer 2004.


International Implications Of The Alien Tort Statute, Gary C. Hufbauer, Nicholas K. Mitrokostas Jan 2004

International Implications Of The Alien Tort Statute, Gary C. Hufbauer, Nicholas K. Mitrokostas

St. Thomas Law Review

In this article, we briefly review the history and development of ATS (Alien Tort Statute) case law, including the expansive reading courts have applied to the statute. Then we discuss potential ATS target countries and estimate the damage to foreign direct investment and trade with those countries. We conclude that unless the Supreme Court narrows the statute's scope, the Congress must amend the ATS to avert its potentially devastating effects on international trade and investment.


The Alien Tort Statute: An Emerging Threat To National Security, Mark E. Rosen Jagc Jan 2004

The Alien Tort Statute: An Emerging Threat To National Security, Mark E. Rosen Jagc

St. Thomas Law Review

The American judicial system has been remarkably well insulated from the pressures of international law. Consequently, when federal judges try to apply international principles in domestic cases there are mistakes and collateral damage. This is a story of how some federal courts have taken the relatively obscure Alien Tort Statute ("ATS"), a two hundred year old law, and applied it in such a bizarre fashion that it threatens the overseas activities of most U.S. companies. It also threatens U.S. security operations, since the Department of Defense ("DOD") relies heavily on contractors for essential combat support services in foreign theaters of …


The Alien Tort Claims Act: A Tool For Repairing Ethically Challenged U.S. Corporations, Sonia Jimenez Jan 2004

The Alien Tort Claims Act: A Tool For Repairing Ethically Challenged U.S. Corporations, Sonia Jimenez

St. Thomas Law Review

Any good business person knows the best way to increase profit is to reduce overhead without compromising the quality of the product. With this in mind, many U.S. corporations have established business operations abroad, particularly in lesser developed countries. While lesser developed countries may not be attractive to tourists, they are attractive to industries and corporations for a number of reasons. Leaders of lesser developed countries can offer such corporations inexpensive materials, untapped natural resources, a cheap, yet highly productive, labor force, and there is virtually no regulation of business practices. Oftentimes, the leaders of such regions are just as …


Corporate Liability For Human Rights Violations On Foreign Soil: A Historical And Prospective Analysis Of The Alien Tort Claims Controversy, Gabriel D. Pinilla Jan 2004

Corporate Liability For Human Rights Violations On Foreign Soil: A Historical And Prospective Analysis Of The Alien Tort Claims Controversy, Gabriel D. Pinilla

St. Thomas Law Review

Breakthrough decisions in Federal Circuit Court have allowed foreign plaintiffs to successfully bring claims against U.S. corporations for egregious human rights violations perpetrated by foreign governments in furtherance of corporate initiatives abroad. This comment analyzes the Alien Tort Claims Act controversy, from the Act's obscure roots through its modem evolution, paying particular attention to developmental cases and critical legal arguments. Though the ATCA has its origins in the Judiciary Act of 1789, a relatively minimal body of recent case law has developed revealing the Act's use as a weapon in the enforcement of international human rights norms. This string of …


Front Matter Jan 2004

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 17, Issue 1, Fall 2004.


Gore's Metamorphosis In State Farm V. Campbell: When Guideposts Make A Detour, Anthony Geraci Jan 2004

Gore's Metamorphosis In State Farm V. Campbell: When Guideposts Make A Detour, Anthony Geraci

St. Thomas Law Review

This paper discusses the significance of State Farm v. Campbell and how it removes what little effectiveness punitive damage awards were left with after Leatherman.1 Part II briefly explores the past of punitive damages and explains the modem jurisprudence of punitive damages in America. Part III sets forth State Farm v. Campbell. Part IV, Section A argues that State Farm has removed the deterrence function from punitive damages because the Court has given corporations all the tools they need to make an effective cost/benefit analysis. Furthermore, State Farm has removed the punishment function from punitive damages because it has instituted …


Mpdls Is Not A Disease: A Proposition For A Model Punitive Damage Limiting Statute In Light Of The Constitutional Guideposts From Bmw And State Farm, Christopher Price Jan 2004

Mpdls Is Not A Disease: A Proposition For A Model Punitive Damage Limiting Statute In Light Of The Constitutional Guideposts From Bmw And State Farm, Christopher Price

St. Thomas Law Review

What would a football game be without the first down marker? Perhaps it would result in confusion, frustration and ultimately an arbitrary decision by a referee to determine what is and what is not a first down. In the same vein as a football game played without first down markers, a court attempting to impose punitive damages without clear and distinguished markers will likely render inconsistent and perhaps even unfair decisions. The United States Supreme Court in State Farm v. Campbell' ignored an opportunity to establish a bright-line test for lower courts to confidently impose punitive damages without running afoul …


The State Farm Punitive Damage Multiplier In The Courts: Early Returns, Charles S. Doskow Jan 2004

The State Farm Punitive Damage Multiplier In The Courts: Early Returns, Charles S. Doskow

St. Thomas Law Review

On May 22, 1981, on a two-lane highway in rural Utah, Curtis Campbell attempted to pass six tractor-trailers.' He was not successful. When the wreckage cleared, the driver of an oncoming car was dead, the driver of one of the cars in line ahead of him was paralyzed, and the United States Supreme Court's punitive damages jurisprudence suddenly exploded. In one fell swoop, the United States Supreme Court, with the aid of the bad faith of State Farm Mutual Automobile Insurance Company ("State Farm"), led by the editorial page of the Wall Street Journal, accomplished what the business community of …


The Terminator Patent And Its Discontents: Rethinking The Normative Deficit In Utility Test Of Modern Patent Law, Ikechi Mgbeoji Jan 2004

The Terminator Patent And Its Discontents: Rethinking The Normative Deficit In Utility Test Of Modern Patent Law, Ikechi Mgbeoji

St. Thomas Law Review

For clarity of analysis, this article is divided into three parts. In the first part, I introduce the technologies of GURTs (Genetic Use Restriction Technologies) and their main characteristics. In the second part, I examine the origins and policy foundations of the patent system, particularly how the courts in various jurisdictions have defined the concept of utility. The second part also explores the evolution of the requirement of utility and its contemporary emergence as a secular, technical test with emphasis on mechanical operability of inventions. The third part of this article explores the nature of GURT patents vis-a-vis their compatibility …


Trust Your Broker: Suitability, Modern Portfolio Theory, And Expert Witnesses, Roger Reinsch, J B. Reich, Nauzer Balsara Jan 2004

Trust Your Broker: Suitability, Modern Portfolio Theory, And Expert Witnesses, Roger Reinsch, J B. Reich, Nauzer Balsara

St. Thomas Law Review

The death of the "dot coms" in the late 1990's left many investors questioning investment advice. Specifically, they began to question the direction, interests, and professional competence of their stockbrokers. Investors who felt their stockbrokers failed them are increasingly resorting to litigation, pursuing what has become known as "suitability" claims, claims based on the argument that brokers recommended or purchased securities that were not suitable for an investor's profile. The issues in and surrounding suitability claims are complex, yet surprisingly little has been written on this topic. This article seeks to foster a much needed discussion and will examine the …


Selling Agricultural Commodities To Cuba - What Happens Next, Michael C. Mcclintock Jan 2004

Selling Agricultural Commodities To Cuba - What Happens Next, Michael C. Mcclintock

St. Thomas Law Review

For forty-two years, the United States has maintained a comprehensive embargo of Cuba. Its multifaceted prohibitions derive from various enactments and much regulatory minutiae. Not surprisingly, a United States national may not import goods from Cuba or make any kind of foreign investment there. Administrative rules permit only a narrow range of transactions such as travel to Cuba for educational activities provided detailed licensing requirements are satisfied. Few realize, however, that travel to Cuba for tourist purposes is now totally prohibited. In the 2000 Trade Sanctions Reform Act (TSRA), Congress expressly authorized the sale of agricultural commodities including medically-related items …


Review In Name Alone: The Rise And Fall Of Comparative Proportionality Review Of Capital Sentences By The Supreme Court Of Florida, Phillip L. Durham Jan 2004

Review In Name Alone: The Rise And Fall Of Comparative Proportionality Review Of Capital Sentences By The Supreme Court Of Florida, Phillip L. Durham

St. Thomas Law Review

The history of life on this planet has been one of change. In fact, the very word 'history' implicitly carries within it the notion of change. Thus, it should come as no surprise that the history of law, like culture, politics, religion, and other institutions of humanity is also one of change. In fact, when one examines the history of U.S. law in its constituent parts, that is, legal rules and decisions, it becomes apparent that these rules and decisions have been subject to mutation, expansion, retraction, abandonment, and creation. Occasionally, although a court purports to be applying a legal …


Protecting The Perception Of The Public Markets: At What Costs - The Effects Of Noisy Withdrawal On The Long Standing Attoney-Corporate Client Relationship, Todd J. Canni Jan 2004

Protecting The Perception Of The Public Markets: At What Costs - The Effects Of Noisy Withdrawal On The Long Standing Attoney-Corporate Client Relationship, Todd J. Canni

St. Thomas Law Review

"Sarbanes-Oxley," this phrase has echoed in the minds of corporate attorneys for almost two years now. Over this period of time, most corporate attorneys have come to recognize the general breadth of this Act. Aside from having a basic understanding, however, do corporate attorneys know the true effects this Act and the corresponding proposal will have on the legal profession and the companies they represent? The scope of this article is concerned with just that. Specifically, this examination concerns the U.S. Securities and Exchange Commission's proposed "noisy withdrawal" provision. Briefly, noisy withdrawal refers to the final measures an attorney would …


Isla Journal Of International & Comparative Law, Isla Journal Of International & Comparative Law Jan 2004

Isla Journal Of International & Comparative Law, Isla Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

In Ocho Rios, on July 23-24, 2004, the American and Caribbean Law Initiative ("ACLI")' held a conference entitled "Caribbean Market Forces: Emerging Trends in International and Comparative Law."


The Global Challenge To Legal Education: Training Lawyers For A New Paradigm Of Economic, Political And Legal-Cultural Expectations In The 21st Century, Winston P. Nagan, Frsa, Danie Visser Jan 2004

The Global Challenge To Legal Education: Training Lawyers For A New Paradigm Of Economic, Political And Legal-Cultural Expectations In The 21st Century, Winston P. Nagan, Frsa, Danie Visser

ILSA Journal of International & Comparative Law

Enormous developments are taking place in the global economy. Initia- tives are being taken from the top down, and quite literally, from the bottom up.


A Global Convention On Choice Of Court Agreements, Ronald A. Brand Jan 2004

A Global Convention On Choice Of Court Agreements, Ronald A. Brand

ILSA Journal of International & Comparative Law

A Special Commission of the Hague Conference on Private International Law will meet during the first nine days of December 2003 to consider a Draft Text on Choice of Court Agreements.


Recent Developments In International Commercial Arbitration, Houston Putnam Lowry Jan 2004

Recent Developments In International Commercial Arbitration, Houston Putnam Lowry

ILSA Journal of International & Comparative Law

Arbitration is the preferred method of settling commercial disputes internationally.


Measure For Measure: Two Misunderstood Prinicples Of Damages, Exodus 21:22-25 Life For Life, Eye For Eye And Matthew 5:38-39 Turn The Other Cheek, Andrew R. Simmonds Jan 2004

Measure For Measure: Two Misunderstood Prinicples Of Damages, Exodus 21:22-25 Life For Life, Eye For Eye And Matthew 5:38-39 Turn The Other Cheek, Andrew R. Simmonds

St. Thomas Law Review

The most important measure of damages is measure for measure: the rule of proportional damages, which in its most famous iteration is the rule of "eye for eye." Found most prominently in the biblical Book of the Covenant in Exodus 21:22-25, the rule states that where two men fight and in the course of their fight a pregnant woman and her fetuses are killed the penalty shall be "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, stripe for stripe." The biblical maxims "eye for eye" and "you have heard it …


Front Matter Jan 2004

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, and Table of Contents for St. Thomas Law Review Volume 17, Issue 2, Winter 2004.


Proportionality Between Crimes, Offenses, And Punishments, James Headley Jan 2004

Proportionality Between Crimes, Offenses, And Punishments, James Headley

St. Thomas Law Review

Blackstone said of the Roman Empire, after it embraced unjust laws, "and then the Empire Fell. The United States Supreme Court embraces unjust laws and is inconsistent regarding substantive due process and proportionality in criminal cases, and substantive due process and proportionality in civil cases. The Due Process Clause and the Eighth Amendment's prohibition against cruel and unusual punishment require proportionality and fairness, meaning that the punishment must fit the crime, and that the penalty must be appropriate to the offense. Throughout a long history of jurisprudence, the Supreme Court has developed or embraced two varying theories of due process …


Actual Confusion In Trademark Infringement Litigation: Restraining Subjectivity Through A Factor-Based Approach To Valuing Evidence, Mark D. Robins Jan 2004

Actual Confusion In Trademark Infringement Litigation: Restraining Subjectivity Through A Factor-Based Approach To Valuing Evidence, Mark D. Robins

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


Use Of A Game Over: Emulation And The Video Game Industry, A White Paper, James Conley, Ed Andros, Priti Chinai, Elise Lipkowitz, David Perez Jan 2004

Use Of A Game Over: Emulation And The Video Game Industry, A White Paper, James Conley, Ed Andros, Priti Chinai, Elise Lipkowitz, David Perez

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


Creating An Online Internet Tax: A Complex Construction?, Isaac J. Morris Jan 2004

Creating An Online Internet Tax: A Complex Construction?, Isaac J. Morris

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


Virtual Property: The Challenges Of Regulating Intangible, Exclusionary Property Interests Such As Domain Names, David Nelmark Jan 2004

Virtual Property: The Challenges Of Regulating Intangible, Exclusionary Property Interests Such As Domain Names, David Nelmark

Northwestern Journal of Technology and Intellectual Property

No abstract provided.