Law Commons^™

Independent, Professional Judgment: The Essence Of Freedom, Bennett H. Brummer

St. Thomas Law Review

This Article will address the concept of professionalism from a criminal defense attorney's perspective and, more specifically, from the perspective of a public defender. The public defender mission is based on our ideals of freedom and equal justice under law. I have spent twenty-five years as a participant in, and observer of, our judicial system. Whether in government or professional circles, public defenders are often outsiders. We are often treated as the illegitimate children at the family reunion. It is from that perspective that I hope to be of some service to you.

Commentary - Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne Henderson

St. Thomas Law Review

This Commentary will explore some of the jurisprudential and practical issues by examining the nature of victims' rights and victimization. After a brief introduction to the history of victim's rights amendments in the United States, this Commentary will explore the images in the rhetoric that lead to unreflective support for victims' rights, then turn to images of justice and arguments for a particular kind of victims' rights, together with a critique of that vision. Finally, this Commentary suggests some alternative approaches and programs that promise to be more helpful to victims of crime than any constitutional amendment would be.

Tax Complexity, Regulatory Ambivalence, And Disparate Benefits And Burdens In Deferred Compensation Planning For Small Business, Richard J. Kovach

St. Thomas Law Review

No abstract provided.

The Myth Of Everglades Settlement, Alfred R. Light

St. Thomas Law Review

To "settle" has a number of senses within the English language. For example, it can mean "to make a decision on; determine; decide," or "to come to a conclusion," as when children bring their disputes to their mother to settle.' It can mean "to agree upon (as a time, place, or plan); fix beforehand," as in to settle on a course of action. It can mean "to put in order; arrange," as in one must settle all his affairs before going away for the winter. It can mean "to pay; arrange payment of," as in one must also settle up …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead and Table of Contents for St. Thomas Law Review Volume 10, Issue 2, Winter 1998.

Front Matter

St. Thomas Law Review

Front Matter includes Table of Contents for St. Thomas Law Review Volume 10, Issue 3, Spring 1998.

Baseball And The Rule Of Law, Paul Finkelman

Cleveland State Law Review

Most cultures have a new year of some kind; a season of beginning. For lawyers who are baseball fans, there are two beginnings, two seasons. The first season begins in April, and begins to wind down in October. That is of course, the baseball season. But, with baseball finished, we can turn to the Court, and watch it with a keen eye. The Court's season continues to build to its climax in the Spring. Just as the baseball season is beginning its slow opening, the Court overwhelms us in the spring with what sometimes seems to be an avalanche of …

Creating Law At The Securities And Exchange Commission: The Lawyer As Prosecutor, Roberta S. Karmel

Law and Contemporary Problems

Karmel discusses the role of the SEC prosecutor in the context of the ethical obligations of a government lawyer when expanding the SEC's authority through the development of new legal theories.

Kentucky Law Survey: Family Law, Louise Everett Graham

Law Faculty Scholarly Articles

This Article addresses some of the family law developments occurring since the Kentucky Law Journal last published a Kentucky law survey. Space limitations preclude discussion of every post-1985 change. Instead, this Article focuses on general trends, significant cases, and legislative developments.

Inquiry into family law developments in Kentucky is timely, not only because of the social importance of family relations, but also because of other contemporaneous efforts at family law reform. The American Law Institute ("ALl") is currently considering a final draft of principles governing family dissolution. That draft, and the discussions that surround its ultimate acceptance or rejection by …

All Or Nothing, Or Maybe Cooperation: Attorney General Power, Conduct, And Judgment In Relation To The Work Of An Independent Counsel, John Q. Barrett

Faculty Publications

This Article considers the allocation of power under the independent counsel law between the Attorney General along with the Department of Justice and the independent counsel whose appointment the Attorney General has triggered. Although the law explicitly transfers much of an Attorney General's lawful power to an independent counsel, it does not go far enough in reallocating that power. Thus, it leaves a fundamental gap between what the current statute purports independent counsel to be and what it actually empowers independent counsel to accomplish. After an introduction in Part I, Part II of this article reviews the current legal provisions, …

Reconciliation And The Fiscal Constitution: The Anatomy Of The 1995-96 Budget "Train Wreck", Anita S. Krishnakumar

Faculty Publications

Congress originally conceived of the budget reconciliation process as a minor fallback mechanism for bringing one year's tax and spending policy in line with overall budget targets. Reconciliation has since become central to congressional efforts to reduce the federal budget deficit. This Note argues, however, that reconciliation is limited in its capacity to impel significant budgetary reform. The author demonstrates how, in 1995-96, reconciliation caused repeated breakdowns in governmental budget-making, undermining the entire budget process. The author concludes that the legal, institutional, and political constraints inherent in the reconciliation process will continue to constitute powerful obstacles to congressional efforts to …

Are Statutes Really "Legislative Bargains"? The Failure Of The Contract Analogy In Statutory Interpretation, Mark L. Movsesian

Faculty Publications

Recent scholarship draws an analogy between contract and statutory interpretation. In this Article, Professor Movsesian explores and rejects that analogy. There are key differences between contracts and statutes, he argues; the intentionalism of contemporary contract law is inappropriate in the context of statutory interpretation. After critically examining the literature on the topic and demonstrating the operative distinctions between contracts and statutes, Professor Movsesian provides a useful illustration in the form of the famous case of Church of the Holy Trinity v. United States. Professor Movsesian shows how a comparison of contract and statutory interpretation sheds light on a number of …

Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett

Faculty Publications

In our system of constitutional decision-making, the Supreme Court makes law as an institution in its formal written opinions. The Court and its individual members make their official legal marks in the printed pages of the United States Reports. In June 1968, in Terry v. Ohio and Sibron v. New York, the two decisions that approved the constitutionality under the Fourth Amendment of police stop and frisk practices, the Court filled many official pages with rich discussion. Over the ensuing thirty years, these Court and individual opinions have shaped the course of constitutional analysis in our courts and guided the …

Fraud And Federalism: Preempting Private State Securities Fraud Causes Of Action, Michael A. Perino

Faculty Publications

The passage of the Private Securities Litigation Reform Act of 1995 has engendered a significant forum shift in class action securities fraud litigation, from federal to state court. This unintended by-product of the Act has reignited debate over our dual federal-state system of securities regulation and in turn has inspired a discussion as to whether Congress should now preempt state securities fraud causes of action. This article argues that preemption is an appropriate, but not the only, solution to these concerns. To support this argument, this article first traces the history of dual state-federal securities regulation within the context of …

Discovery In International Legal Developments Year In Review: 1997, Christopher J. Borgen

Faculty Publications

U.S. law provides litigants with a variety of means to obtain evidence from foreign jurisdictions. The Federal Rules of Civil Procedure (the Federal Rules) and rules of state courts may be used if a U.S. court has jurisdiction over the person who is in control of the evidence in question. Section 1783 of tide 28 of the United States Code provides a means for serving a subpoena on U.S. nationals or residents abroad. Litigants may also obtain foreign discovery through letters rogatory as permitted by 28 U.S.C. § 1781 and treaties such as the Hague Convention on Taking Evidence (the …

The Street Locations: Downtown Cleveland, October 31, 1963, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), consists of a map drawn by Jill Dinneen (SJU Law '99), based on Sanborn maps from the 1950s and 1960s, photographs and eyewitness descriptions of downtown Cleveland then and now; and a key to marked locations on the map.

State Of Ohio V. Richard D. Chilton And State Of Ohio V. John W. Terry: The Suppression Hearing And Trial Transcripts, John Q. Barrett

Faculty Publications

This appendix to Deciding the Stop and Frisk Cases: A Look Inside the Supreme Court’s Conference, 72 St. John’s L. Rev. 749 (1998), includes Biographical Information on the Participants in the Case; and transcripts of the complete pretrial and trial proceedings in the 1964 criminal prosecutions of Richard Chilton and John Terry, arranged by Prof. Barrett to create the organization reflected in the Table of Contents at the beginning of the appendix. Footnotes were added to provide citations and, in a few instances, to clarify the text. Bracketed material was added to correct obvious slips of the tongue or the …

Looking Past The Human Rights Committee: An Argument For De-Marginalizing Enforcement, Makau Wa Mutua

Journal Articles

No abstract provided.

Reallocating Interpretive Criminal-Lawmaking Power Within The Executive Branch, Dan M. Kahan

Law and Contemporary Problems

A strategy for regaining control of federal criminal law, the reallocation of interpretive criminal law-making power within the Executive Branch, is discussed.

The Solicitor General And The Interests Of The United States, David A. Strauss

Law and Contemporary Problems

Strauss examines the institutional and administration approach to the issue of the Solicitor General's involvement in legal questions not directly involving the federal government.

The Wto Legal System: Sources Of Law, David Palmeter, Petros C. Mavroidis

Faculty Scholarship

Modern discussions of the sources of international law usually begin with a reference to Article 38 (1) of the Statute of the International Court of Justice (ICJ), which provides:

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
2. international custom as evidence of a general practice accepted as law;
3. the general principles of law recognized by civilized nations;
4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly …

Sovereign Indignity? Values, Borders And The Internet: A Case Study, Eric Easton

All Faculty Scholarship

This article focuses on the publication ban issued by a Canadian court in a notorious murder trial, and the popular reaction to the publication ban, as a case study of the new global communications environment. Part I reconstructs the factual circumstances that provoked the ban, as well as the responses of the media, the legal establishment, and the public. Part II examines the ban itself, the constitutional challenge mounted by the media, and the landmark Dagenais decision. Part III reflects on the meaning of the entire episode for law, journalism, and national sovereignty.

The Dagenais decision demonstrates the continued independence …

The Conflict Between Species In An Ever More Crowded World, Jane Goodall

Animal Law Review

No abstract provided.

Another Weapon For Combating Family Violence: Prevention Of Animal Abuse, Charlotte Lacroix

Animal Law Review

Dr. Lacroix discusses the correlation between different forms of family violence and suggests that family pets are just an­other victim. Dr. Lacroix proposes that stronger animal an­ticruelty laws may be part of the solution to reducing family violence because they enhance the likelihood of detection of an offender's abusive behavior.

Oregon Dog Control Laws And Due Process: A Case Study, Christopher C. Eck, Robert E. Bovett

Animal Law Review

Mr. Eck and Mr. Bovett examine the inequities and inconsis­tencies in Oregon dog control laws and due process concerns arising from them. The authors outline constitutional require­ments that need to be enforced to ensure protection against unreasonable government actions in cases involving these laws.

Recovery Of Common Law Damages For Emotional Distress, Loss Of Society, And Loss Of Companionship For The Wrongful Death Of A Companion Animal, Steven M. Wise

Animal Law Review

Mr. Wise analyzes experiential recognition of the bond that ex­ists between human companions and companion animals in the context of possible recovery of tort damages for the wrongful death of a companion animal. He demonstrates that companion animals are often seen by their human companions as members of the family (holding much the same status as children). He discusses historical aspects of the common law as they relate to current tort law in such cases and examines the tension that exists between principle and policy.

Dolphin-Safe Tuna: The Tide Is Changing, Kristin L. Stewart

Animal Law Review

Ms. Stewart reviews the history of the tuna-dolphin contro­versy in the Eastern Pacific Ocean. She explores international agreements and U.S. law that mandate dolphin-safe tuna fish­ing practices. Finally, Ms. Stewart reviews the steps taken by the United States, including embargoes against other coun­tries' tuna, to force tuna-fishing nations to use dolphin-safe practices.

The Fruits Of Our Labor: Results From The First Session Of The 105th Congress -- 1997 Federal Legislative Summary, Nancy Perry

Animal Law Review

Ms. Perry outlines the actions taken on animal issues during the first session of the 105th Congress and discusses the weak consideration and lack of progress made in much of the legis­lative agenda in is this area. She also provides a current legislative update for each bill involved.

"Save The Whales" V. "Save The Makah": The Makah And The Struggle For Native Whaling, Richard Kirk Eichstaedt

Animal Law Review

In 1997 the International Whaling Commission approved a quota for the Makah Indian Tribe to hunt four gray whales per year, culminating years of legal wrangling and political maneu­vering by all of the concerned parties. Mr. Eichstaedl examines the history of the Makah whaling rights from the Tribe's treaty with the United States in 1855 to the present-day battles with Congress and the IWC. This unfolding story pits a species of whale once on the brink of extinction, against Native Ameri­cans re-asserting a centuries-old custom.

Can Nonhuman Animals Find Tort Protection In A Human-Centered Common Law?, Enger Mccartney-Smith

Animal Law Review

Section 870 of the Restatement (Second) of Torts provides a method by which a court might extend private intentional tort rights to nonhuman animal plaintiffs. Given our current scien­tific and experiential understanding of many species, com­bined with existing court procedures to ease administrability, such an extension of tort law is mandated.