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Full-Text Articles in Law

Presumed Guilty Until Proven Innocent: Using Results Of Statistical Or Econometric Studies As Evidence, John M. Tyson Jan 1998

Presumed Guilty Until Proven Innocent: Using Results Of Statistical Or Econometric Studies As Evidence, John M. Tyson

St. Thomas Law Review

This Article examines the prerequisites required before results of statistical or econometric studies based upon empirical data should be admitted into evidence in light of the Supreme Court of the United States' decision in McCleskey v. Kemp. In addition, it reviews other cases in which results of statistical studies were considered are reviewed to define and describe the methods applied. Moreover, to determine whether proper safeguards exist to justify their role in the American Justice System, the Article examines the inherent tension between traditional judicial fact-finding and admitting results of quantitative studies based on empirical data as evidence.

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Tobacco Company Liability Under Mail Fraud, Juan Carlos Lopez-Campillo Jan 1998

Tobacco Company Liability Under Mail Fraud, Juan Carlos Lopez-Campillo

St. Thomas Law Review

In the United States, tobacco products are heavily advertised. Advertising budgets of tobacco companies have increased more than 1,500% between 1970 and 1992. In 1993, $6.2 billion were spent by tobacco companies on advertising and promoting their products. This Comment examines whether the mail fraud statute applies where tobacco consumers read advertising printed in newspapers or magazines mailed to subscribers, in furtherance of the companies' fraudulent scheme. If so, the second element of mail fraud is satisfied, and tobacco company executives may then be held criminally liable for their fraudulent deception of the American public.

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Introduction, Anthony C. Musto Jan 1998

Introduction, Anthony C. Musto

St. Thomas Law Review

No abstract provided.

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Is Miranda Dead, Was It Overruled, Or Is It Irrelevant, Alfredo Garcia Jan 1998

Is Miranda Dead, Was It Overruled, Or Is It Irrelevant, Alfredo Garcia

St. Thomas Law Review

This Article will proceed in three stages. Part I will provide the historical, social, and political backdrop to the Miranda opinion. It will discuss the pragmatic basis for the path that the Court chose to follow in Miranda. Part II will underscore the attempts to overrule Miranda and the Court's almost instant departure from its doctrinal foundation. In doing so, the argument is that the Court's retreat can be viewed in large measure as a reaction to the negative response the opinion engendered, both politically and socially. It also can be viewed as the logical outcome of the Court's need …

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Publicity In High Profile Criminal Cases, H. Patrick Furman Jan 1998

Publicity In High Profile Criminal Cases, H. Patrick Furman

St. Thomas Law Review

Many may wonder about the wisdom of having a criminal lawyer discuss the ethical problems associated with high profile cases. Over the past few years, the performances of criminal lawyers on the public stage have been decidedly uneven with respect to professionalism and ethical behavior. We witnessed the spectacle of People v. Simpson. There, it seemed that the lawyers spent more time in front of the camera than in front of the bench. Ironically, after the trial, half of the lawyers got their own television shows. The Simpson trial was an event which deserved to be labeled a trial only …

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Representation Of Subpoenaed Witnesses, Jack M. Denaro Jan 1998

Representation Of Subpoenaed Witnesses, Jack M. Denaro

St. Thomas Law Review

Recently, the front pages of the New York Times and the Washington Post have made witnesses before the grand jury a special topic for morning coffee. Issues of foul tactics, parental immunity, grand jury voyeurism, and the Fifth Amendment have reigned in the tabloids and on television.Today, in law, the representation of subpoenaed witnesses has become a subject as vast as that of contracts and as complicated as common law property.

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"Leaks" In Federal Grand Jury Proceedings, Roma W. Theus Ii Jan 1998

"Leaks" In Federal Grand Jury Proceedings, Roma W. Theus Ii

St. Thomas Law Review

The subject of federal grand jury "leaks" came to the forefront most recently because of the continuous leaks regarding the Special Prosecutor's investigation of President Clinton and Monica Lewinsky. Anyone with a pulse realizes that there has been a flood of grand jury "leaks" about this matter. But, the repeated "leaks" in that matter have highlighted three things, two of which are negative and one that is positive. The positive feature is that there does not appear to be a significant problem with "leaks" of grand jury information in the "garden variety" or "routine case." The negative features are that: …

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Mail Fraud: Redefining The Boundaries, Ellen S. Podgor Jan 1998

Mail Fraud: Redefining The Boundaries, Ellen S. Podgor

St. Thomas Law Review

This Article examines some of the recent judicial decisions that limit the conduct subject to prosecution under the mail fraud statute. It focuses on decisions regarding three key aspects of 18 U.S.C. § 1341, namely, the scheme to defraud, intent, and mailings in furtherance. Although these three aspects are discussed separately in this Article, the scheme to defraud and intent are often intertwined. This Article is limited to recent judicial decisions that have restricted the prosecution's use of the mail fraud statute. These recent cases serve to redefine the parameters of the statute. Due to the breadth of the statute, …

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Another Three Strikes Law: An In Depth Look At Florida's Prisoner Releasee Reoffender Punishment Act, Desiree M. Cuason Jan 1998

Another Three Strikes Law: An In Depth Look At Florida's Prisoner Releasee Reoffender Punishment Act, Desiree M. Cuason

St. Thomas Law Review

Part I of this Comment will provide a brief historical background of Florida's sentencing guidelines and present an in-depth analysis contrasting various "Three Strikes You're Out" laws throughout the nation and the Florida Act. Part II will discuss certain conflicts which may result from the passage of the Act. Part III will discuss future impact on issues such as increased workload, prison overcrowding, and the shifting of discretionary power from the judiciary to the prosecutor. Finally, Part IV will propose alternatives to further the goals of prevention and incapacitation.

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United States V. Scheffer: What Is Left Of The Polygraph In Criminal Trials, Timothy M. Hughes Jan 1998

United States V. Scheffer: What Is Left Of The Polygraph In Criminal Trials, Timothy M. Hughes

St. Thomas Law Review

Will courts uphold aper se rule against polygraph admissibility in all contexts despite the constraints imposed by a criminal defendant's Sixth Amendment right to present a defense? For the first time, the Supreme Court of the United States has addressed whether a per se ban on polygraph evidence violates a defendant's Sixth Amendment right to present a defense. It appears that invoking the Sixth Amendment right to present a defense produces the strongest argument in favor of polygraph admittance. Therefore, since United States v. Scheffer involves a court-martial and arises under the Military Rules of Evidence, the Supreme Court's decision …

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Front Matter Jan 1998

Front Matter

St. Thomas Law Review

Front Matter includes Table of Contents for St. Thomas Law Review Volume 11, Issue 1, Fall 1998.

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Welcome Address, Franklyn M. Casale Jan 1998

Welcome Address, Franklyn M. Casale

St. Thomas Law Review

We gather here today for the Fourth Annual St. Thomas University School of Law Tribal Sovereignty Symposium to honor these words. I am pleased with the topic which we will be discussing this year "Sacred Mother Earth: The Struggle to Save The Everglades" for two reasons. The first reason is that the Everglades are important to us at St. Thomas University because they are so critical to the basic ecosystem of our community. The second reason why I am so pleased with this subject is because it resonates with our own Mission Statement "[tihe community provides a personalized and caring …

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Opening Remarks, Daniel J. Morrissey Jan 1998

Opening Remarks, Daniel J. Morrissey

St. Thomas Law Review

Let me offer a warm welcome to the Fourth Annual Tribal Sovereignty Symposium here at St. Thomas University School of Law. I would like to commend all the faculty, students, and other friends of St. Thomas who have worked so hard to plan and produce this conference, with particular thanks to Professor Siegfried Wiessner who brings such special dedication and enthusiasm to this project every year. The focus of this year' s symposium is the environment-particularly the preservation of that unique ecosystem that lies right on our doorstep, the Florida Everglades. This should be a prime concern of our environmental …

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Remarks On Tribal History And Culture, Brian Patterson Jan 1998

Remarks On Tribal History And Culture, Brian Patterson

St. Thomas Law Review

There is a lot to be said in a matter of minutes regarding what has occurred in the past five-hundred years. As we talk about culture, I wonder: What exactly is culture? For what we have been given, for what we have been able to retain is an understanding of who we are as people, of the instructions the Creator has given to all of us on this good Mother Earth. So as we struggle in this day and age, we hear words such as religion, culture, heritage. In my young mind-relatively young-I wonder what this really means when what …

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Remarks On Indian Spirituality And Culture, Brian Patterson Jan 1998

Remarks On Indian Spirituality And Culture, Brian Patterson

St. Thomas Law Review

Good morning everyone, it is a beautiful day as we gather here at St. Thomas, and I give thanks to the people of St. Thomas for having us here. We have come here and now we must be of one mind. We must gather all of our thoughts into one and we must wrap all our thoughts into one bundle. And we will give thanks to the Creator that we can come here in peace and that peace is in our hearts, and peace is in our mind. And we are thankful that we can still be happy. I addressed …

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Chevron Doctrine In Federal Indian Law And The Agencies' Duty To Interpret Legislation In Favor Of Indians: Did The Epa Reconcile The Two In Interpreting The Tribes As States Section Of The Clean Water Act?, Alex Tallchief Skibine Jan 1998

Chevron Doctrine In Federal Indian Law And The Agencies' Duty To Interpret Legislation In Favor Of Indians: Did The Epa Reconcile The Two In Interpreting The Tribes As States Section Of The Clean Water Act?, Alex Tallchief Skibine

St. Thomas Law Review

Part II of the Article discusses whether there is an ambiguity in the CWA, and if so, whether the EPA should be given Chevron deference in its interpretation of the Act. After concluding that there is an ambiguity in the statute and that Chevron is applicable, this Article discusses what role, in the Chevron inquiry, should be played by the rule of statutory construction mandating that federal statutes enacted for the benefit of Indians be construed liberally with ambiguities resolved in their favor. This rule will be referred to as the Indian liberal construction rule. This Article takes the position …

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Deference In The Judicial Resolution Of Intrachurch Disputes: The Lesser Of Two Constitutional Evils, Nathan C. Belzer Jan 1998

Deference In The Judicial Resolution Of Intrachurch Disputes: The Lesser Of Two Constitutional Evils, Nathan C. Belzer

St. Thomas Law Review

In the course of its century long struggle to balance the ideals of the Free Exercise and Establishment clauses with the need for judicial intervention in the resolution of intrachurch disputes, the Supreme Court has fashioned two jurisprudential approaches. The deference approach, first enunciated by the court in Watson v. Jones and given modern approval in Serbian Eastern Orthodox Diocese v. Milivojevich, mandates that civil courts defer to the result reached by the highest authority within the church or religious association in which the dispute arose. 9 In contrast, the neutral principles approach, first suggested in Presbyterian Church v. Hull …

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Poststructural Analysis Of The Power And Class Behind The Formalistic Application Of Erisa Preemption Of State Law, Erik Nelson Jan 1998

Poststructural Analysis Of The Power And Class Behind The Formalistic Application Of Erisa Preemption Of State Law, Erik Nelson

St. Thomas Law Review

This comment presents a poststructural approach to the current formulation of the Employment Retirement Income Security Act (ERISA) of 1974. Part I details the context in which Congress created federal protection for ERISA beneficiaries. Part II illustrates how the judiciary wavered in its broad preemptive construction of ERISA before ultimately privileging a construction of ERISA which denied ERISA beneficiaries extracontractual and punitive damages. Part III will examine deconstruction and its impact on the jurisprudence of the federal courts. Part IV embarks on a deconstructionist analysis of the "relates to" preemptive provision of ERISA to reveal that the only rationality to …

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Ilsa Journal Of International & Comparative Law: International Practitioner's Notebook, Ilsa Journal Of International & Comparative Law Jan 1998

Ilsa Journal Of International & Comparative Law: International Practitioner's Notebook, Ilsa Journal Of International & Comparative Law

ILSA Journal of International & Comparative Law

No abstract provided.

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Biological Truths And Legal Fictions, R. Alta Charo Jan 1998

Biological Truths And Legal Fictions, R. Alta Charo

Journal of Health Care Law and Policy

No abstract provided.

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Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke Jan 1998

Fencing Cyberspace: Drawing Borders In A Virtual World, Maureen A. O'Rourke

Faculty Scholarship

In the last few years, the Internet has increasingly become a source of information even for the historically computer illiterate. The growing popularity of the Internet has been driven in large part by the World Wide Web (web). The web is a system that facilitates use of the Internet by helping users sort through the great mass of information available on it. The web uses software that allows one document to link to and access another, and so on, despite the fact that the documents may reside on different machines in physically remote locations. The dispersion of data that is …

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The Legal Profession, The Impact Of Law And Legal Theory, Foreword, Geoffrey C. Hazard, Jr. Jan 1998

The Legal Profession, The Impact Of Law And Legal Theory, Foreword, Geoffrey C. Hazard, Jr.

Fordham Law Review

No abstract provided.

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Contested Adoption And The Liberty Interest Of The Child, Marcus T. Boccaccini, Eleanor Willlemsen Jan 1998

Contested Adoption And The Liberty Interest Of The Child, Marcus T. Boccaccini, Eleanor Willlemsen

St. Thomas Law Review

The Supreme Court of the United States has gone to significant lengths to outline an unwed father's rights in adoption cases, but has yet to address the child's rights in similar cases. It is these constitutionally protected rights, which are usually referred to as "liberty interests," that will be discussed in this Article.

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Defining The Term Disability Under The Americans With Disabilities Act, William J. Mcdevitt Jan 1998

Defining The Term Disability Under The Americans With Disabilities Act, William J. Mcdevitt

St. Thomas Law Review

The key to securing the rights and protections afforded under the ADA is to fall within the statutory meaning of the term "disability." As defined, "disability" is a term of art, the meaning of which is substantially different and more complex than that found in other acts. Although the meaning of the ADA specifically refers to the Rehabilitation Act of 1973, and its accompanying regulations, it does so in terms of setting a floor for the imposition of the standards applicable under this Act. Furthermore, the ADA has its own unique legislative history and regulations. Therefore, the purpose of this …

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Epilogue To Prime Time Law: Fictional Tv Lawyers And Their Impact On America — From Perry Mason And L.A. Law To Law & Order And Ally Mcbeal, Ronald D. Rotunda Jan 1998

Epilogue To Prime Time Law: Fictional Tv Lawyers And Their Impact On America — From Perry Mason And L.A. Law To Law & Order And Ally Mcbeal, Ronald D. Rotunda

Law Faculty Books and Book Chapters

Epilogue to Robert M. Jarvis and Paul R. Joseph's "Prime Time Law: Fictional TV Lawyers and Their Impact on America -- From Perry Mason and L.A. Law to Law & Order and Ally McBeal".

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Kentucky Law Survey: Evidence, Robert G. Lawson Jan 1998

Kentucky Law Survey: Evidence, Robert G. Lawson

Law Faculty Scholarly Articles

This Article is a survey of recent developments in evidence law. It focuses on specific issues, including statements for medical treatment or diagnosis, tape recordings, "probativeness" versus "prejudice," and others.

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Mandatory Pre-Dispute Arbitration: Steps Need To Be Taken To Prevent Unfairness To Employees And Consumers, Jean R. Sternlight Jan 1998

Mandatory Pre-Dispute Arbitration: Steps Need To Be Taken To Prevent Unfairness To Employees And Consumers, Jean R. Sternlight

Scholarly Works

Courts, arbitral organizations and governmental agencies are increasingly recognizing that mandatory binding arbitration can be used both to disadvantage employees and consumers, and to evade legal requirements. Over the last decade, private parties such as employers, manufacturers and financial organizations began using binding arbitration agreements to skirt the public law, and public juries, with increasing intensity. As so often happens, overreaching may once again be giving way to retrenchment, as the tide seems to be turning away from the “anything goes” approach of the earlier 1990s.

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The Demise Of Law Reform And The Triumph Of Legal Aid: Congress And The Legal Services Corporation From The 1960’S To The 1990’S, William P. Quigley Jan 1998

The Demise Of Law Reform And The Triumph Of Legal Aid: Congress And The Legal Services Corporation From The 1960’S To The 1990’S, William P. Quigley

Saint Louis University Public Law Review

No abstract provided.

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Aesthetic Ambition Versus Commercial Appeal: Adapting Novels To Film And The Copyright Law, Douglas Y'Barbo Jan 1998

Aesthetic Ambition Versus Commercial Appeal: Adapting Novels To Film And The Copyright Law, Douglas Y'Barbo

St. Thomas Law Review

No abstract provided.

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Are Same-Sex Prenuptial Agreements Enforceable In Florida? Posik V Layton, Law And Policy, Brett A. Barfield Jan 1998

Are Same-Sex Prenuptial Agreements Enforceable In Florida? Posik V Layton, Law And Policy, Brett A. Barfield

St. Thomas Law Review

Posik v. Layton has Florida lawmakers, attorneys, and gay rights activists paying attention. The Supreme Court of Florida, however, declined to accept the invitation to sort out this muddled opinion from a murky area of the law. The dispute in Posik arose from a failed lesbian relationship between the parties, who had drafted a contract analogous to a prenuptial agreement. Under the contract, Layton would provide financial support for the pair, and Posik would provide domestic services and live the remainder of her life with Layton. A liquidated damages provision, analogous to a support payment upon divorce, stated that Layton …

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