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Full-Text Articles in Law

Lawyering, Power, And Reform: The Legal Campaign To Abolish The Broad Form Mineral Deed, Dean Rivkin Jan 1999

Lawyering, Power, And Reform: The Legal Campaign To Abolish The Broad Form Mineral Deed, Dean Rivkin

Scholarly Works

No abstract provided.


Front Matter Jan 1999

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 11, Issue 2, Spring 1999.


The Orphan Drug Act: What's Right With It, Gary Pulsinelli Jan 1999

The Orphan Drug Act: What's Right With It, Gary Pulsinelli

Scholarly Works

No abstract provided.


The Most Aggravated And Least Mitigated Murders: Capital Proportionality Review In Florida, Ken Driggs Jan 1999

The Most Aggravated And Least Mitigated Murders: Capital Proportionality Review In Florida, Ken Driggs

St. Thomas Law Review

In this article I will briefly discuss the evolution of death penalty law after Furman v. Georgia, including the three statutory models that nearly every death penalty state has adopted. Part of this evolution was the development of proportionality review. I will then discuss Florida's "weighing" statute and how proportionality fits into that. Then I will discuss the specifics of the Florida Supreme Court's approach to proportionality review in death penalty direct appeals. I will elaborate on how the Supreme Court has considered commonly encountered, broad factual situations in death sentences. I will briefly discuss a recent amendment to Article …


Separate Claim Removal Vs. Article Iii: Is Section 1441(C) Unconstitutional, Daniel R. Vega Jan 1999

Separate Claim Removal Vs. Article Iii: Is Section 1441(C) Unconstitutional, Daniel R. Vega

St. Thomas Law Review

It is an axiomatic principle of law that federal courts are courts of limited jurisdiction. Hence, a congressional enactment that purports to grant the federal district courts subject matter jurisdiction over state law claims absent diversity of citizenship or supplemental jurisdiction should not survive an Article III case or controversy analysis. Inexplicably, however, the application of the present separate and independent claim removal statute does just that. It allows a federal district court to exercise jurisdiction over state law claims absent any federal jurisdictional justification. In United Mine Workers of America v. Gibbs,3 the Supreme Court of the United States …


We'll Do It For You Any Time: Recognition And Enforcement Of Foreign Arbitral Awards And Contracts In The United States, Pedro Menocal Jan 1999

We'll Do It For You Any Time: Recognition And Enforcement Of Foreign Arbitral Awards And Contracts In The United States, Pedro Menocal

St. Thomas Law Review

The basic mechanisms for the recognition and enforcement of foreign arbitration agreements and awards in the United States are found in the Federal Arbitration Act ("FAA"). The fundamental purpose of the FAA is to "ensure that private agreements to arbitrate are enforced according to their terms." The FAA applies to any maritime transaction or any transaction involving commerce "among the several States or with foreign nations.. ." to the full extent of federal commerce clause, whether enforcement is sought in federal or state court The FAA does not apply to "contracts of employment of seamen, railroad employees, or any other …


Juvenile Curfew Challenges In The Federal Courts: A Constitutional Conundrum Over The (Less Than) Fundamental Rights Of Minors', Charles W. Gerdes Jan 1999

Juvenile Curfew Challenges In The Federal Courts: A Constitutional Conundrum Over The (Less Than) Fundamental Rights Of Minors', Charles W. Gerdes

St. Thomas Law Review

The purpose of this Comment is to examine the inconsistency of analytical methodology that has been employed in the federal courts to determine whether the fundamental rights of minors are coextensive with those of adults in a given regulatory scheme. Specifically, the Comment focuses on this analysis in the context of juvenile curfew ordinance challenges. Further, the Comment proposes a substantive analytical methodology that implements the instruction of Supreme Court precedent in the realm of minors' constitutional rights. To achieve this purpose, the Comment necessarily investigates Supreme Court decisions analyzing the coextensive nature of a minor's fundamental rights. In some …


Missing Pieces Of Memory: A Rejection Of Type Classifications And A Demand For A More Subjective Approach Regarding Adult Survivors Of Childhood Sexual Abuse, Lonnie B. Richardson Jan 1999

Missing Pieces Of Memory: A Rejection Of Type Classifications And A Demand For A More Subjective Approach Regarding Adult Survivors Of Childhood Sexual Abuse, Lonnie B. Richardson

St. Thomas Law Review

Part I of this Comment will address Freud's discovery of the effects of childhood sexual abuse. Freud's subsequent suppression of his discovery has led in part to the contemporary disbelief in the existence of childhood sexual abuse. Part II will focus on the psychological aspects of incest, exploring the impact of trauma on children and the resulting repression of the traumatic memories. Part III will review the policy considerations and recent developments involving the statute of limitations in delayed discovery of childhood sexual abuse cases. This part addresses the need to permit plaintiffs to sue for latent harm that went …


Clash Of Power And Jurisdiction: The United States Supreme Court V. The International Court Of Justice, Charles B. Radlauer Jan 1999

Clash Of Power And Jurisdiction: The United States Supreme Court V. The International Court Of Justice, Charles B. Radlauer

St. Thomas Law Review

In Breard v. Greene, the Supreme Court of the United States ignored an order of the International Court of Justice ("ICJ") requesting a temporary stay of execution. In so doing, the Court may have violated Article 94 of the United Nations Charter, a duly ratified treaty of the United States, which requires the United States to abide by decisions of the ICJ. This case arose in federal court on a writ of habeas corpus on appeal from a state court conviction of attempted rape and murder in Virginia. After the writ of habeas corpus was denied in both the district …


Front Matter Jan 1999

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 12, Issue 1, Fall 1999.


Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson Jan 1999

Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson

St. Thomas Law Review

This article reviews the historical context of controversial speakers on campus, examines various liberties and limitations accorded them under the Constitution, and suggests clear and effective standards for dealing with contentious speech in an academic setting.


Zoning In Florida Under The Religious Freedom Restoration Acts: What City Officials Should Watch Out For In Defending Their Ordinances Against Freedom Of Religion Claims, Steven D. Ginsburg, Natalie J. Carlos Jan 1999

Zoning In Florida Under The Religious Freedom Restoration Acts: What City Officials Should Watch Out For In Defending Their Ordinances Against Freedom Of Religion Claims, Steven D. Ginsburg, Natalie J. Carlos

St. Thomas Law Review

Mr. Justice Holmes, speaking for the Supreme Court in Schenck v. United States, stated: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." Today we revisit this theme in the context of a religious organization's right to build its houses of worship in neighborhoods whose elected representatives have determined are inappropriate locations for churches and synagogues. Does a religion have the right to disregard general zoning laws of neutral application, claiming its beliefs are in conflict and burdened, and asserting they have a superior right to …


Incompetence In The Brain Injured Individual, D. Michael Bitz, Jean S. Bitz Jan 1999

Incompetence In The Brain Injured Individual, D. Michael Bitz, Jean S. Bitz

St. Thomas Law Review

We will initially address the historic acceptance of scientific propositions by the law as they relate to sanity. Insanity is one of the earliest forms of incompetence addressed by the criminal justice system. The current treatment of the courts with respect to head injuries will be presented. Following, there will be an explanation of the philosophical demand for an independent mens rea to sanction punishment. This will be tied to the relationship between head injuries and crime. Specifically, how a form of injury directly affects an individual's ability to make competent decisions while appearing outwardly normal. The legal implications of …


Changes In International Air Cargo: Montreal Protocol No. 4 Attains Force Of Law, Carl W. Christy Jr. Jan 1999

Changes In International Air Cargo: Montreal Protocol No. 4 Attains Force Of Law, Carl W. Christy Jr.

ILSA Journal of International & Comparative Law

On March 4, 1999, the handling of many international air cargo claims arising within the United States changed


Limited Representation: Helping Clients While Protecting Yourself, Mary E. Berkheiser Jan 1999

Limited Representation: Helping Clients While Protecting Yourself, Mary E. Berkheiser

Scholarly Works

The lawyer-client relationship is defined by what the client retains the lawyer to do, and that retention may be as general or specific as the lawyer and client desire. The Nevada Supreme Court has recognized that even with regard to “a particular transaction or dispute, an attorney may be specifically employed in a limited capacity.” This freedom to contract for broader or narrower representation benefits both lawyers and clients. No lawyer can be a true generalist anymore, and most clients cannot afford the full range of representation that the legal profession offers on a single matter.


Aggravating The Immigration Paradox: The Nicaraguan Adjustment And Central American Relief Act's Effect On U.S. Immigration Policy, Annette C. Escobar Jan 1999

Aggravating The Immigration Paradox: The Nicaraguan Adjustment And Central American Relief Act's Effect On U.S. Immigration Policy, Annette C. Escobar

St. Thomas Law Review

Part I of this Comment analyzes United States immigration policy in 1996 as differentiated from the change marked by NACARA. Part II briefly explains the Supreme Court's previous holdings on immigration issues and its interpretation of immigration law. The author concludes that the Court should hold that immigration law must comport with the Fifth and Fourteenth Amendments of the United States Constitution, both due process and equal protection. Part III demonstrates Congress' motivation in passing NACARA as well as the Act's general provisions. Part IV analyzes the effects and implications of NACARA. Specifically, it explains the Act's innate discriminatory tendencies, …


A Critical Inquiry Into A Government Taking: Presidential Suspension Of Title Iii Of The Libertad Act, Antonio L. Roca Jan 1999

A Critical Inquiry Into A Government Taking: Presidential Suspension Of Title Iii Of The Libertad Act, Antonio L. Roca

St. Thomas Law Review

In 1959, as most of the world watched, Castro's revolutionary army took control of the island of Cuba. Shortly thereafter, in accord with his communist ideology, Castro illegally confiscated all privately owned property and appropriated it to the state. Among the properties illegally confiscated were properties owned by thousands of Americans that had invested in Cuba before the revolutionary insurgence. Even further, Fidel Castro failed to provide compensation to the property owners of the appropriated property in violation of customary international law, prompting a draconian response from the United States. Amid pressure from American business owners and the heightening tensions …


Swingers: Morality Legislation And The Limits Of State Police Power, Raymond Ku Jan 1999

Swingers: Morality Legislation And The Limits Of State Police Power, Raymond Ku

St. Thomas Law Review

This article examines whether Florida can legitimately convict the swingers pursuant to the Florida Constitution specifically, and principles of constitutional law in general, and concludes that it cannot. In so doing, this article does not attempt to define privacy or to provide a taxonomy of activities that fall within its reach, which has been done quite thoroughly by others. The swingers' conduct clearly falls within what scholars have characterized as the right to sexual autonomy, personhood and freedom of association. However, rather than simply reiterating what those authors have said and applying it to the novel facts of this case, …


Machiavelli And A Unified Theory Of Economic Parental Responsibility: A Proposed Statute, Dana E. Prescott Jan 1999

Machiavelli And A Unified Theory Of Economic Parental Responsibility: A Proposed Statute, Dana E. Prescott

St. Thomas Law Review

The evolution of a unified theory of economic parental responsibility derives from the coupling of modem dislocation of families and its material impact on children. Over the past three decades, the United States and much of Europe have struggled with the economic adjustments created by the dissolution of marriage as a matter of personal right rather than as an exception conferred by society. Divorce by itself, however, does not begin to define the boundaries of the adjustments, as serial relationships, remarriage and the non-marriage of parents create and compound economic uncertainty for children.


An Unconstitutional Deprivation Of Access To The Courts: An Analysis Of Section 19 Of Chapter 99-225, Florida Statutes, Edward S. Schwartz Jan 1999

An Unconstitutional Deprivation Of Access To The Courts: An Analysis Of Section 19 Of Chapter 99-225, Florida Statutes, Edward S. Schwartz

St. Thomas Law Review

I will begin by summarizing the salient features of the current Florida common law of premises liability and the changes Section 19 effects in that law. Since the access to courts analysis depends, in part, on determining whether the Legislature has impaired rights of action existing in 1968, I will also analyze the pre-1968 premises liability law of Florida.


Some Defense Perspectives On The Tort Reform Act Of 1999, Jack W. Shaw Jr. Jan 1999

Some Defense Perspectives On The Tort Reform Act Of 1999, Jack W. Shaw Jr.

St. Thomas Law Review

The 1999 Florida Legislature enacted a far-reaching Tort Reform Act (the "Act"). That bill was signed into law by Governor Bush, who stated that he had some misgivings about certain provisions of the bill, but became convinced that its beneficial aspects far outweighed its troublesome aspects. The Act is lengthy and complex, comprised of fifty-three (53) pages and thirty-six (36) sections. This article will discuss some of the statutory changes in the areas of comparative fault, statutes of limitation and repose, defenses, limitations on liability, and punitive damages. Counsel should be aware, however, that the Act also contains provisions covering …


The Profession Of Religion And Law, Ted Dotts Jan 1999

The Profession Of Religion And Law, Ted Dotts

Fordham Urban Law Journal

This essay provides definitions for the terms "religion," "law" and "profession." The professional bears the power to bid forth -- to announce, command, tell, declare and make aware. Religion is the power to relate. Law is the power to regulate. The author concludes that religion and law are givens of human living. The question is not whether to have one or the other. The question is how we live with these realities.


A Lawyer's Mischellany: Scriptural Resources For Christian Lawyers, Joseph Allegretti Jan 1999

A Lawyer's Mischellany: Scriptural Resources For Christian Lawyers, Joseph Allegretti

Fordham Urban Law Journal

This Essay provides resources for spiritual sustenance and to help bridge the gap between what one does as a lawyer and one professes as a Christian. The author provides a dozen passages from Scripture --some from the Hebrew Scriptures, some from the New Testament -- that the author found relevant to the life and work of Christian lawyers. After each quotation, the author includes a few comments to spark further reflection.


International Environmental Law : Consumer Environmentalism Versus Environmental Consumerism, Rajendra Kumar Nayak Jan 1999

International Environmental Law : Consumer Environmentalism Versus Environmental Consumerism, Rajendra Kumar Nayak

Research outputs pre 2011

No abstract provided.


South Carolina Legal Resources On The Web, Duncan E. Alford Jan 1999

South Carolina Legal Resources On The Web, Duncan E. Alford

Faculty Publications

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The Leak And The Craft: A Hard Line Proposal To Stop Unaccountable Disclosures Of Law Enforcement Information, John Q. Barrett Jan 1999

The Leak And The Craft: A Hard Line Proposal To Stop Unaccountable Disclosures Of Law Enforcement Information, John Q. Barrett

Faculty Publications

The critics of Kenneth W. Starr accused him, in the five-plus years that he served as the multi-tasked Independent Counsel, of many failings, mistakes, and improprieties. One of the most prevalent charges was one that has significance to lawyers and resonates with the general public's sense of bad behavior by prosecutors: the allegation that Starr and/or members of his staff "leaked" information. This general accusation was, of course, imprecise. It also might have been overbroad. Prosecutorial "leaks" include such plain illegalities as disclosing grand jury information to the media or other unauthorized persons, and also the much less regulated practice …


Independent Counsel Law Improvements For The Next Five Years, John Q. Barrett Jan 1999

Independent Counsel Law Improvements For The Next Five Years, John Q. Barrett

Faculty Publications

This Article is adapted from remarks made in New Orleans on January 8, 1999, as part of an Association of American Law Schools (AALS) Administrative Law Section panel discussion entitled, "Separation of Powers Revisited: Should the Independent Counsel Law Be Renewed?" Our topic is "Should the Independent Counsel Law Be Renewed?" and my answer is, "Not exactly." I will not be, in other words, defending the status quo. Indeed, the empty chair you see here on the dais nicely contains the only "defender" of the status quo of whom I know. What I would like to do is remind us …


Discovery In International Legal Developments Year In Review: 1998, Christopher J. Borgen Jan 1999

Discovery In International Legal Developments Year In Review: 1998, Christopher J. Borgen

Faculty Publications

American procedure regarding international discovery stems from 28 U.S.C. §§ 1781-1783, and the Federal Rules of Civil Procedure, in particular Rule 28(b). The leading case on the topic of international discovery is the Supreme Court's decision in Société Nationale Industielle Aerospatiale v. United States District Court. Many later cases base their reasoning on interpretations of Aerospatiale. This article is a brief review of developments during the year.


Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian Jan 1999

Sovereignty, Compliance, And The World Trade Organization: Lessons From The History Of Supreme Court Review, Mark L. Movsesian

Faculty Publications

One of the World Trade Organization’s (WTO's) more remarkable and controversial innovations is its mechanism for resolving trade disputes among member states. Traditionally, states have resolved such disputes in "pragmatic" fashion, through negotiation and compromise informed by the relative power of the parties involved. But no longer: the WTO's Understanding on Rules and Procedures Governing the Settlement of Disputes (the DSU) provides that disputes between member states are to be resolved in adversary proceedings before impartial panels of experts." Under the DSU, panels have authority to decide whether members' laws violate international trade norms; panel decisions are essentially binding, though …


Embracing Descent: The Bankruptcy Of A Business Paradigm For Conceptualizing And Regulating The Legal Profession, Jeffrey W. Stempel Jan 1999

Embracing Descent: The Bankruptcy Of A Business Paradigm For Conceptualizing And Regulating The Legal Profession, Jeffrey W. Stempel

Scholarly Works

Lawyers are said to travel in packs, or at least pairs, and in the popular parlance are often compared to hoards of locusts, herds of cattle, or unruly mobs. However, at least for purposes of assessing concerns with professionalism currently surrounding the bar and the public, whether attorneys are more or less social than other human animals does not matter. My point is simply that lawyers are social beings; like other human beings in social and occupational groups, lawyers behave largely in accordance with group norms, in much the same way peer pressure led Julian English toward juvenile delinquency in …