Law and Society Commons^™

Towards Equal Opportunity In Canada: New Approaches, Mixed Results Symposium - Human Rights In The Americas - Commentary., John Hucker

St. Mary's Law Journal

Abstract Forthcoming.

Trying To Make Ends Meet: Reconciling The Law And Practice Of Human Rights Amnesties Symposium - Human Rights In The Americas - Commentary., Robert O. Weiner

St. Mary's Law Journal

The problem of amnesty for widespread human rights violations in the Americas illustrates the credibility gap in public international law. This Commentary reviews applicable standards and attempts to identify a minimum state response to past human rights violations. It also examines the question of amnesties, offers certain legal interpretations, and presents some criteria for an amnesty framework which might be reconcilable with the state’s international obligations. This Commentary’s aim is not to suggest amnesties are a proper response to the problem of past human rights abuses, however, it does acknowledge amnesties have so far been the most common response. It …

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

The Size Of A Government Body Is Not Subject To A Vote Dilution Challenge Under Section 2 Of The Voting Rights Act Of 1965., Peter J. Beverage

St. Mary's Law Journal

In Holder v. Hall, the Court held the size of a government body is not subject to a vote dilution challenge under Section 2 of the Voting Rights Act of 1965. The Act consists of two primary components, Sections 2 and 5, designed to eliminate and prevent subtle voting practices and procedures utilized to obstruct minority voter participation. Section 5 requires states with a history of discriminatory voting practices to obtain federal preclearance before changing a voting standard, practice, or procedure. Section 2 addresses the existing methods utilized to deny or abridge a citizen’s right to vote.  In Holder, the …

Flow Control Ordinances That Require Disposal Of Trash At A Designated Facility Violate The Dormant Commerce Clause., Laura Gabrysch

St. Mary's Law Journal

In C & A Carbone, Inc. v. Town of Clarkstown, the Court held flow control ordinances that require disposal of trash at a designated facility violate the Dormant Commerce Clause. In the absence of congressional action, the Court has recognized—the Dormant Commerce Clause—restrictions on states’ ability to regulate interstate commerce. The Dormant Commerce Clause doctrine does not emanate directly from the Constitution, but instead flows from the body of Commerce Clause jurisprudence that has gained legitimacy throughout the years. In Carbone, the Court elevated the economic interests of one local waste processor over Clarkstown’s environmental and public protection. This type …

In Re Oluloro: Risk Of Female Genital Mutilation As Extreme Hardship In Immigration Proceedings Symposium - Human Rights In The Americas - Recent Development., Patricia Dysart Rudloff

St. Mary's Law Journal

On March 23, 1994, in In re Oluloro, Immigration Judge Kendall Warren’s decision indicated the United States Immigration and Naturalization Service (INS) should consider human rights abuses directed at women. The overriding concern was the possibility that two young U.S. girls would suffer female genital mutilation (FGM) if the INS deported their mother to Nigeria. In reaching the decision to suspend the mother’s deportation, Judge Warren condemned FGM as “cruel and serv[ing] no known medical purpose.” Judge Warren ruled the practice presented an extreme hardship for the girls. Unfortunately, the court’s ruling has no precedential value because the INS did …

Oil And Gas Issues Involved In Cercla Reauthorization., Joseph R. Dancy, Victoria A. Dancy

St. Mary's Law Journal

After several decades of environmental legislation, the regulated community faces an extremely complex and costly matrix of obligations and responsibilities. For industry in general, the most expensive environmental statute enacted has been the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). CERCLA created the Hazardous Substances Superfund (Superfund) and established retroactive liability for remediation of hazardous substance contamination. President Clinton admitted CERCLA does not work and even labelled the Superfund a “disaster.” Even though public and private entities have already spent twenty billion dollars on the CERCLA program since its inception, only around ten or twenty percent of …

Capital Punishment: The Humanistic And Moral Issues Address., Helen Prejean

St. Mary's Law Journal

Death row reminds us that justice is not equal. Death sentences, opposed to being reserved for only the most heinous crimes, are generally related to the profile of the victim and identity of those most outraged by the crime. The majority of people on death row killed a white person, even though one-half of homicide victims in the United States are people of color. Because of this, and the fact that the law almost always sides with people of wealth and power, the death penalty works to compound societal trauma instead of healing or solving anything. The skewed and harmful …

Use Of A Pen Register May Be A Search Within The Purview Of Article I, Section 9 Of The Texas Constitution., Angie Patrick

St. Mary's Law Journal

In Richardson v. State, the Texas Court of Criminal Appeals granted Richardson’s second petition for discretionary review to determine whether law enforcement’s use of a pen register constitutes a search. The use of a pen register may be a search within the purview of Article I, Section 9 of the Texas Constitution. Courts use the reasonable-expectation-of-privacy test, from Katz v. United States, to determine whether a search has occurred under the Fourth Amendment. In Richardson, the Texas Court of Criminal Appeals reviewed whether the use of a pen register equates to a search despite the U.S. Supreme Court’s determination in …

Foreigners On Texas's Death Row And The Right Of Access To A Consul Symposium - Human Rights In The Americas., S. Adele Shank, John Quigley

St. Mary's Law Journal

Foreign nationals arrested in the United States confront the disadvantage of mounting a criminal defense in several ways. In most cases, they are unfamiliar with U.S. customs, police policies, and criminal proceedings. Although U.S. courts strive to prevent bias against accused based on alienage, discrimination does occur. To minimize the disadvantages experienced by accused foreigners, international law guarantees the right of consular access. Under internationally accepted norms applicable in the United States, an accused foreigner is entitled to contact his home-state consult office for assistance. Furthermore, mere involvement of a consul may encourage local government to follow procedural norms and …

The Subjection Of Women . . . Still: Unfulfilled Promises Of Protection For Women Victims Of Domestic Violence Comment., James Martin Truss

St. Mary's Law Journal

Throughout American history, women have fought to realize a full and independent legal identity, equal to men. Nonetheless, issues such as domestic violence have often remained obscured due partly to the judicial system’s reluctance to intrude into “family matters.” Although courts have long-since renounced the common-law rule which allowed a husband to discipline his wife, the plight of the battered woman remained largely ignored by courts and legislatures. The pervasiveness and severity of domestic violence are widely documented. On June 1, 1991, the Texas Supreme Court created the Gender Bias Task Force of Texas (Task Force) to consider whether gender …

International Law Of Trade Preferences: Emanations From The European Union And The United States., Kele Onyejekwe

St. Mary's Law Journal

This Article posits that the increase of tariff arrangements, like the Generalized System of Preferences (GSP), is evidence of the “hardening” of a body of international trade-preference law. It contends that the law of trade preferences is widely practiced in international affairs and the developed nations which terminate all trade preferences for developing countries most likely engage in illegal conduct under international law. Classical international law principally consisted of the law between nations and an international law of trade preferences in any form was unthinkable. Thus, neither international cooperation nor a duty for developed countries to assist developing countries is …

A Settlement Offer Above Policy Limits Does Not Trigger An Insurer's Stowers Duty To Act Reasonably., James Martin Truss

St. Mary's Law Journal

Abstract Forthcoming.

Robert Wilburn Calvert, The Prudentialist In Memoriam., L. Wayne Scott

St. Mary's Law Journal

Abstract Forthcoming.

Understanding Federalism, Larry Kramer

Vanderbilt Law Review

It's necessary to begin with considering the sort of judicially enforced federalism rejected in Garcia and to consider why the Court rejected it. According to this view of federalism, the Constitution leaves certain substantive affairs exclusively to the states, and what matters is making sure that states can regulate these without federal interference. So long as this domain is protected, the political significance of states is assured and federalism is secure. The federal government can, if it chooses, take charge of all those matters as to which state and federal authority is concurrent-though Congress will find this harder to accomplish …

Nationalism And The Right To Self-Determination: The Arab-Israeli Conflict, Malvina Halberstam

Articles

Self-determination is a slogan that has captured the imagination of people throughout the world. Numerous U.N. General Assembly resolutions have exalted self-determination, often above the fundamental rights specifically provided for in the U.N. Charter. Notwithstanding these resolutions, in practice, self-determination generally has been applied only to the dismemberment of colonial empires. Its universal application is neither possible nor desirable.

In the Arab-Israeli conflict, self-determination was never truly the issue. The conflict has been deliberately transformed into a claim for self-determination as a political tactic designed to gain the support of third world countries in the United Nations. The issues in …

Secular Fundamentalism, Paul F. Campos

Publications

No abstract provided.

Self-Publication: Defamation Within The Employment Context., Howard J. Siegel

St. Mary's Law Journal

This Article reviews the rules and reasoning various jurisdictions have maintained in defamation actions supported by self-publication. This type of defamation action is commonly known as self-defamation. Before the law will hold the originator of a defamatory statement liable for defamation, publication of the defamatory comments must occur. Generally, defamatory communications are those communications which tend to injure one’s reputation. Publication normally occurs when one communicates the defamatory matter to “one other than the person defamed.” Originally, courts considered defamation actions valid only when the defamed person alleged that the originator directly published the statement to a third person. Under …

Time Limitations For Objecting To Claims: The Interplay Between Sections 502(D) And 546(A) Of The Bankruptcy Code., Gregory G. Hesse

St. Mary's Law Journal

It is common lore among bankruptcy trustees and lawyers that a bankruptcy trustee has an unlimited time period under the Bankruptcy Code (the Code) to file objections to claims. Neither Section 502(a) of the Code nor Federal Rule of Bankruptcy Procedure 3007 contains time limitations within which an objection to a claim must be filed. Yet, creative creditor attorneys have fashioned arguments that the two-year limitations period placed on avoidance actions by Section 546(a) of the Code applies to claim objection proceedings brought under Section 502(d). Because courts have held the limitations period of Section 546(a) applies to claim objection …

U.S. Taxation Of U.S. Persons Doing Business Or Investing In Mexico: An Overview., William H. Hornberger

St. Mary's Law Journal

U.S. persons who plan to do business in Mexico or invest in new or existing Mexican business ventures are faced with a myriad of U.S. federal income tax issues. U.S. counsel advising U.S. persons regarding the ownership structure for a contemplated business or investment in Mexico should have a basic understanding of the U.S. system of international taxation. While a working knowledge of Mexico’s tax system is also helpful, Mexican counsel can provide information regarding the Mexican tax implications of doing business or investing in Mexico. A review of the U.S. system of international taxation should begin with a consideration …

Banning Motherhood: An Rx To Combat Child Abuse., Toni Driver Saunders

St. Mary's Law Journal

Abstract Forthcoming.

Enhanced Punishment Under The Texas Hate Crimes Act: Politics, Panacea, Or Pathway To Hell., David Todd Smith

St. Mary's Law Journal

Nearly without exception, modern legislatures have responded to the reprehensible nature and detrimental social effects of hate crime by enacting laws specifically designed to punish the offender’s discriminatory animus. The term “hate crime” describes criminal conduct which is motivated by the offender’s bias or prejudice against another cognizable group. Although the reprehensible nature of a hate crime is often apparent from the facts of any given case, the repercussions of these offenses exceed the ignoble character of any one specific act. Texas has now joined the ranks of these jurisdictions by adopting legal provisions which authorize heightened penalties upon a …

Legislative Redistricting In 1991-1992: The Texas Bill Of Rights V. The Voting Rights Act., James C. Harrington, Judith Sanders-Castro

St. Mary's Law Journal

Every decade, after the federal government has taken the census, Americans endure the process of redistricting Congress, state legislatures, county commissioner precincts, school boards, city councils, and a host of other elected bodies. Governed by the interplay of federal, state, and local law, the reapportionment process would seem to be a relatively easy task in theory. Yet, overriding forces unique to the political arena and the judiciary’s voice in redistricting questions undermine the implementation of such a simple system. Narrow interpretation of the Voting Rights Act of 1965 by the United State Supreme Court and lower federal courts further intensify …

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

The Supreme Court Takes A Weapon From The Drug War Arsenal: New Defenses To Civil Drug Forfeiture., Scott Alexander Nelson

St. Mary's Law Journal

This Comment discusses the history and development of forfeiture law—emphasizing the misnomer of “guilty property”—and addresses the lack of constitutional safeguards in the civil forfeiture statutes. It outlines prospective constitutional defenses announced by the United States Supreme Court, emphasizing the Fifth Amendment guarantee of due process, the Eighth Amendment’s Excessive Fines Clause, and the “innocent owner” defense. The federal statute authorizing civil forfeiture, 21 U.S.C. § 881 (Forfeiture Statute), was initially enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Comprehensive Forfeiture Act of 1984 amended the statute to impose forfeiture on real property …

Pierre Schlag’S “The Problem Of The Subject”: Law’S Need For An Analyst, David S. Caudill

Cardozo Law Review

Pierre Schlag's book-length law review article, The Problem of the Subject, sets out to reveal, and succeeds in revealing, nothing - Schlag reveals a gap or void in contemporary legal philosophy with respect to the subject. Of course, the subject (for now, the "I" or self or individual) can be found in legal theory-people reflect on law, make law, and obey or break the law-but legal theorists generally avoid the question of who the subject is. Thus, accounts of the subject are rare in legal scholarship, and the problems that such accounts would raise are generally evaded. Of course, …

Jacob Burns And The Institute For Advanced Legal Studies, David G. Carlson

Cardozo Law Review

Jacob Burns lived a long and fabled life, which was obviously its own reward. Among the very many things that could be said, and the thing I would like to memorialize here, is the profound legacy Mr. Bums left behind at Benjamin N. Cardozo School of Law, where he served as chairman of the board for many years and as founder of the Jacob Bums Institute for Advanced Legal Studies. In his memory, I would like to say a little about the history of this endeavor and Mr. Burns's role in it.

Judaism And Postmodernism, Suzanne Last Stone

Cardozo Law Review

No abstract provided.

Law And Hermeneutics In Rabbinic Jurisprudence: A Maimonidean Perspective, José Faur

Cardozo Law Review

No abstract provided.

Monolingualism And Judaism, José Faur

Cardozo Law Review

No abstract provided.