Law Commons^™

This Time For Sure--A Political And Legal History Of Water Control Projects In Lake Okeechobee And The Everglades, David G. Guest

St. Thomas Law Review

For more than a century, efforts have been under way to control water in the Lake Okeechobee/Everglades ecosystem. After years of scheming dating back to the 1840s, drainage projects began in earnest in the 1880s. Although each project was intended to make up for the shortcomings of the last, each was progressively more damaging to the environment, and thus necessitated another more expensive project. Thus, each project had unintended consequences. Throughout this progression of projects, opposing interests repeatedly found themselves in the Florida Legislature and the Florida Supreme Court. In those forums, the zeal for Everglades drainage produced an enlarged …

The Everglades Ecosystem: From Engineering To Litigation To Consensus-Based Restoration, John J. Fumero, Keith W. Rizzardi

St. Thomas Law Review

"The Everglades were dying. The endless acres of saw grass, brown as an enormous shadow where rain and lake water had once flowed, rustled dry." As late as the 1800's, the Everglades consisted of a 60-mile wide shallow river, seldom more than 2 feet deep, flowing from Lake Okeechobee to Florida Bay. That was before the U.S. Army Corps of Engineers erected 1,400 miles of dikes, dams, levees and water control structures in the name of water supply and flood control Now in the year 2000, more than fifty years after Marjory Stoneman Douglas wrote about the demise of the …

Good Science Or Myopia: Will The 1991 Everglades Settlement Lead To An Optimal Restoration Or Will Phosporus Reductions Be Taken Too Far, William H. Green, Gary V. Perko

St. Thomas Law Review

Everglades water quality restoration: What does it mean? How will it be achieved? How much will it cost? Will it promote re-establishment of historical wildlife populations? Despite years of scientific research, these questions remain answered for the control of phosphorus inputs under Florida's landmark Everglades Forever Act. A one-dimensional approach continues to drive Everglades restoration efforts along a narrow path of extreme phosphorus reductions despite mounting scientific evidence that this could harm wildlife and be unduly costly to society However, moderation of that goal may enhance Everglades wildlife habitat by restoring lost ecosystem functionality, and preserving areas where wildlife mercury …

Judicial Review Of Security Clearances For Homosexual Post--U.S. Department Of The Navy V. Egan, Christopher Scott Maravilla

St. Thomas Law Review

This article focuses on sexual preference discrimination against civilian employees in the national security field. It will specifically address whether employees rights, when denied or have a security clearance revoked solely on the basis of their homosexuality without any additional circumstances surrounding it, is a colorable constitutional claim that may be heard in the federal courts.

This article will:

I. Survey current employment law pertaining to homosexuals in emphasizing the national security cases;

II. Argue that Egan does not bar judicial review of background investigations when colorable constitutional claims are at issue; and

III. Argue that the courts may hear …

Editor In Chief's Welcome, D. Michael Bitz

St. Thomas Law Review

Welcome to the St. Thomas University School of Law. Today and tomorrow you will have the opportunity to hear distinguished speakers explore the topic of the New Genetics: Legal, Medical and Religious Perspectives. I am sure you will enjoy and learn from our guests and speakers. Today in the area of the biological sciences, the advances are pushing past what many of us knew as science fiction in our younger days. These advances require an examination of how this affects our humanity and our conceptions of civilized behavior and morality. Our endeavor is to present in these two days talks …

President's Welcome, Franklyn M. Casale

St. Thomas Law Review

I take the opportunity to welcome everyone here to St. Thomas University for the purposes of inaugurating this Bioethics Symposium. The symposium brings together many distinguished scholars from various disciplines from all over the United States and beyond, involves our University faculty and student-body in important conversations, which support the Mission of this University, and enhances its academic programs.

Introductory Remarks On The Occasion Of The 2001 St. Thomas Bioethics Symposium, John Makdisi

St. Thomas Law Review

Dean John Makdisi's introductory remarks for the 2001 St. Thomas Bioethics Symposium.

Keynote Address: The Human Genome Project: The Central Ethical Challenge, Edmund D. Pellegrino

St. Thomas Law Review

Dr. Edmund D. Pellegrino's Keynote Address, "The Human Genome Project: The Central Ethical Challenge.

Immediate Clinical Applications Of The New Genetic Technology, R Rodney Howell

St. Thomas Law Review

No abstract provided.

Genetic Breakthroughs And The Limits Of Medicine: Short Stature, Growth Hormone, And The Idea Of Dysfunction, Peter H. Schwartz

St. Thomas Law Review

This article reviews arguments that have been presented for the use of growth hormone in some children without growth hormone deficiency. Some of these arguments, this article will claim, utilize confused ideas of dysfunction, and this has led to weak arguments that rely on poor data. Clarifying the concept of dysfunction produces clearer arguments that do not depend on such questionable empirical claims. This analysis aims to serve as a case study of how the careful definition and application of ideas can aid in evaluating the proper purview of medicine. The discussion of future genetic breakthroughs and the powers they …

Science, Philosophy, And The Courts, Jason Borenstein

St. Thomas Law Review

The purpose of this article is to explore the legal system's philosophical assumptions about science and examine whether scientific evidence has been handled adequately by the federal courts. This article does not intend to offer a comprehensive philosophy of science. Rather, it discusses specific issues that have been raised by courts when they have tried to evaluate scientific expert testimony. Scientific testimony tends to pose an especially difficult challenge for the court system, because it can be deeply inaccessible to lay judges and juries. To complicate matters further, the courts have raised several issues they probably are unable to resolve, …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 14, Issue 1, Fall 2001.

Are Medical Ethics Different From Legal Ethics?, Mervin H. Needell

St. Thomas Law Review

In this paper I shall compare and contrast some relevant ethical positions of legal and medical precepts and practices which seem to suggest or predispose to a professional bias. I derive these conclusions from official positions contained in institutional accounts, such as case law or treatises. Even if such comparisons do not make a convincing case for professional bias, they should still provide some insight into the ways in which the thought processes of lawyers and doctors do or do not differ. Although the words "moral" and "ethical" are often used interchangeably, if a distinction must be made here, I …

"Extraordinary Or Specialized Training"--As A "Legitimate Business Interest"--In Restrictive Covenant Employment Law: Florida And National Perspectives, Frank J. Cavico

St. Thomas Law Review

The purpose of this article is to examine Florida statutory law and case law, as well as the law from other jurisdictions, that govern restrictive covenants which arise in the employment relationship. The analysis will center on the critical legal element essential to uphold and enforce a covenant not to compete - the "legitimate business interest" requirement. In particular, this article will focus on one important, yet perplexing, aspect thereto - the level and extent of training and/or education necessary to achieve such a protected "interest." The relevant part of the Florida restrictive covenant statute and all Florida court decisions …

Voluntary Intoxication In Florida: Public Policy Versus Due Process And Why Florida's Intoxication Statute Cannot Withstand A Constitutional Challenge, Michael L. Elkins

St. Thomas Law Review

This comment examines the substance of the opinions in Egelhoff and juxtaposes the Florida statutory scheme against the proper constitutional analysis. The Egelhoff majority has done little to provide a workable constitutional backdrop from which other state statutes banning evidence of voluntary intoxication may be categorized. Part II of this comment provides the historical background for the voluntary intoxication defense. Part I initially examines the factual and legal background of the Egelhoff case as set forth by the Montana Supreme Court. Part IV then provides an analysis of the opinions authored by the United States Supreme Court. This section will …

Voluntariness With A Vengeance: Miranda And A Modern Alternative, Jonathan B. Zeitlin

St. Thomas Law Review

One of the most famous opinions in American jurisprudence is that of the United States Supreme Court in the case of Miranda v. Arizona. The Court's prophylactic rule in Miranda has been followed in both state and federal courts with little derogation for over thirty years. On February 8, 1999, in Dickerson v. United States, the United States Court of Appeals for the Fourth Circuit ignored Miranda, turning instead to 18 U.S.C. § 3501, a relatively obscure federal statute enacted in 1968 in response to the Court's decision in Miranda. The United States Supreme Court granted certiorari and heard oral …

The Nexus Between Intellectual Property Piracy, International Law, The Internet, And Cultural Values, David J. Stephenson Jr.

St. Thomas Law Review

In a way similar to the dramatic transformation of mass into energy at the speed of light, intellectual property piracy disputes have compellingly special characteristics when multicultural values clash over the Internet. The sudden explosion of Internet use outside of Western Europe and North America, especially in Asia, is most apparent in Singapore, which has the highest per capita use of the Internet anywhere in the world. This rapid global expansion of Internet use has been accompanied by related claims of intellectual property piracy that frequently resemble disputes that have recently arisen in United States and European courts. For example, …

Preserving Our Seminole Heritage: The Mission Of The Ah-Tah-Thi-Ki Museum, Billy Cypress

St. Thomas Law Review

I enjoyed listening to the first two speakers, and I think that they had provided us with a lot of information, and that is very good. I had heard that St. Thomas University had a symposium on sovereignty of indigenous tribes, and though it is the first time I have come to this program, I know that, for some years good people have come by, tribal people from other places have come here and have talked at this university. This university is so fortunate to have such a forum on tribal sovereignty and to be able to enjoy it right …

The Evolving Right Of Self-Determination Of Indigenous Peoples, Paul J. Magnarella

St. Thomas Law Review

The destruction of indigenous societies represents a major threat to the contemporary world's rich inventory of cultures. Throughout the centuries, indigenous peoples have been forcibly removed from their lands, dispossessed of their natural resources, discriminated against or simply decimated.! Most of the world's estimated 300 million indigenous peoples are less well off than are members of the dominant societies. Many live in extreme poverty. Indigenous peoples wish to maintain their own unique cultures and ethnic identities and to control their traditional lands of occupation or at least some portions of them. Indigenous peoples need protected enclaves if they are to …

The Ayllu: The Basic Social Unit Of The Aymara People, Tomas Alarcon

St. Thomas Law Review

The Aymara People have inhabited this Earth since time immemorial. Their civilization dates back to 1200 B.C., and their culture was based in the ancient city of Tiwanaku, between 400 and 1000 AD. Since its organization, the dwellers of this great city have endured and resisted conquest by the Inca empire, the Spanish, and the modem states surrounding Lake Titicaca. The Aymara now live in the Andes within the borders of Peru, Bolivia, Chile and Argentina.Their territory is an altiplano or plateau, Poopo, in the region surrounding Lake Titicaca at 4,000 meters above sea level. The Aymara ancestors selected this …

Historical And Comparative Contexts For The Evolution Of Conflict Of Laws In Nigeria, Remigius N. Nwabueze

ILSA Journal of International & Comparative Law

Knowledge of the history of conflict of laws in Nigeria, the ideas behind its development, and the numerous problems that beset the application of its principles, is in itself the history of the socio-economic structure of the society, between feudalism and capitalism.

The Helms-Burton Act: The Final Piece To Bring Down The Tyrant's Regime, Franchesco Soto

ILSA Journal of International & Comparative Law

In 1960, President Dwight D. Eisenhower began what has become one of the longest standing economic embargoes this country has ever had against another country

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

ILSA Journal of International & Comparative Law

This virtual haiku of war comes from a fellow named Josep Sonah, whom a Boston Globe report described as a nineteen-year-old veteran of the Sierra Leone civil war.

Comparative Federalism And The Issue Of Commandeering, Daniel Halberstam

Book Chapters

Divided power systems, such as the United States, the European Union, and the Federal Republic of Germany, confront a common question: whether the central government may 'commandeer' its component States, that is, whether the central government may issue binding commands that force its component States to take regulatory action with respect to private parties. This chapter explores what may initially appear as a puzzling difference in the answers given. Whereas US constitutional jurisprudence currently prohibits commandeering, the founding charters of the EU and Germany permit such action. And all do so in the name of protecting the integrity and importance …

Allocution For Victims Of Economic Crimes, Jayne W. Barnard

Faculty Publications

No abstract provided.

Maritime Law Uniformity And Federalism After Yamaha V And Dohsa Amendment: For Whom The Bell Tolls, Attilio M. Costabel

St. Thomas Law Review

No abstract provided.

Abstention In The Federal Courts: A Suggested Bifurcated Standard Of Review To Create Procedural Reliance Where States And Localities Regulate Constitutionally Protected Activity, Carl E. Brody Jr.

St. Thomas Law Review

State and local governmental entities are conferred the responsibility of creating and enforcing laws within their jurisdictions for the efficient governance of their citizens. Where these laws impact on individuals or businesses subject to this regulatory function, challenge through the court system becomes the only available outlet to determine the rights of the parties. These challenges to state and local laws regulating the acts of private individual and commercial activity are almost uniformly based on claims that such laws violate the First Amendment or other constitutional rights. In many cases, for various purposes, these plaintiff/challengers avail themselves of the jurisdiction …

Too Young To Understand--Extending Equal Access To All Children In Public Schools Regardless Of Age, David Woodcock

St. Thomas Law Review

Finding the right mix of church and state is not an easy task for our society. This is especially true in our public schools. Everyday, millions of elementary school students meet after school in public school facilities to participate in Girl Scouts, Boy Scouts, Cub Scouts, Brownies, and 4-H Clubs. These organizations share the goals of preparing young boys and girls to grow into men and women of good morals and character. Religious organizations that share these goals, however, are denied access to school facilities simply because they have a religious point of view. School districts have told children that …

Administrative Pitfalls Of Litigating Under The Florida Civil Rights Act, Kenneth M. Curtin

St. Thomas Law Review

Under the common law in Florida, an employee hired for an indefinite period of time was considered an employee-at-will and either party could terminate the employment at any time and for any reason without incurring liability. The Florida Civil Rights Act of 19922 ("FCRA") modified the common law in that, the FCRA created a cause of action for unlawful termination. The FCRA was patterned after Title VII of the Federal Civil Rights Acts of 1964 and 1991, as well as the Age Discrimination in Employment Act.' Nevertheless, differences abound between federal legislation and the FCRA, especially in regards to administrative …

The Three Nixon Cases And Their Parallels In Malaysia, Myint Zan

St. Thomas Law Review

During the period from 1974 to 1982 the Supreme Court of the United States decided three cases in which the late Richard M. Nixon, the 37th President of the United States of America was involved as an appellant/ petitioner. All three cases decided by the United States Supreme Court bore the name of Richard Nixon in the title of the cases. This Article will attempt to discern some of the legal and constitutional issues which have arisen from these "Three Nixon" cases. Some of the issues in these cases would inevitably have arisen out of issues that are peculiar to …