Stetson Law Review

STETSON LAW REVIEW VOLUME 47 FALL 2017 NUMBER 1 ARTICLES Executive Order 13769 and America’s Longstanding Practice of Institutionalized Racial Discrimination Towards Refugees and Asylum Seekers Kaila C. Randolph 1 One of the paradoxes of international human rights law is the international community’s inability to curb xenophobic attitudes resulting in discriminatory regulations that exclude refugees. The United States has an established history of excluding immigrants, particularly refugees, based on national or ethnic origin, masked under national security. After the Civil War and the abolition of slavery, lawmakers sought to control the ethnic composition of the country, by prohibiting the entry of certain ethnic groups. The practice was implemented through racially discriminatory legislation until the Immigration and Nationality Act of 1965. Nonetheless, the federal government continued to exercise racial discrimination through the adjudication of asylum claims. The United States exemplified its present‐day practice of racial exclusion with Executive Order 13769 “Protecting the Nation from Foreign Terrorist Entry into the United States,” which prohibits the admission of Syrian nationals indefinitely and suspends the U.S. Refugee Admissions Program for a minimum of 120 days. Such immigration policies and regulations are a form of institutionalized racial discrimination that violate a refugee’s equal protection and due process rights under the Fifth Amendment and international human rights norms and customs. Although the Ninth Circuit Court of Appeal unanimously stayed the injunction, the appellate court did not review the merits of the case. This Article traces the enduring practice of institutionalized racial discrimination towards refugees in the United States and the illegality of Executive Order 13769 under federal and international law. Finally, the United States has both constitutional and international obligations to denounce xenophobia and racially discriminatory laws. Post‐Conviction Review: Questions of Innocence, Independence, and Necessity Fiona Leverick, Kathryn Campbell & Isla Callander 45 Alongside a growing recognition of the existence of miscarriages of justice, there has been a parallel development of schemes to address wrongful convictions after the normal appeals process has been exhausted. This Article addresses the question of what constitutes the proper role for such schemes, drawing on a comparative examination of the respective schemes in Canada, Scotland, and North Carolina. It puts forward four arguments. First, it argues that there is a clear need for post‐ conviction review schemes to operate outside of the courts, supported by investigative resources and the power to compel the production of evidence, and for them to be independent from government. Second, it argues that such schemes should not restrict their remit to cases in which fresh evidence emerges, but should be empowered to refer cases back to the court of appeal where there has been a procedural impropriety that casts doubt on guilt. They should not, however, be permitted to refer cases back to the court where there is overwhelming evidence of guilt, despite the seriousness of the procedural breach concerned. While there is a good argument that a court should overturn a conviction where a serious breach of procedure calls into question its moral authority to adjudicate, this argument does not extend to a post‐conviction review body, which sits one step removed from the conviction process and is likely to lose public confidence if it refers cases where there is overwhelming evidence that the convicted person is factually guilty. Third, it argues that while there is no reason in principle to restrict review to serious cases or to cases where the convicted person is living, these are not unreasonable restrictions to place on a scheme if limited resources exist. Finally, it argues that post‐conviction review bodies concerned primarily with the review of individual applications are not ideal for playing a wider role in systemic reform, which would be a more effective undertaking by an affiliated body with a broader based membership. Lessons of Law & Legal Studies Through Literature: The Psychology of a Criminal Versus the Psychology of a Police Investigator as Seen Through the Lenses of Crime and Punishment: Porfiry v. Raskolnikov James Beckman 85 This Article will explore several themes. Primarily, this Article analyzes the psychologies of both an accused and the police as both interact with and battle each other psychologically over the possibility of a confession. The above analysis occurs through the prism of Fyodor Dostoevsky’s famous 1866 work Crime and Punishment. Specifically, a literary analysis of two key characters appearing in Dostoevsky’s book will be utilized in this Article. The actions of the two key characters analyzed involve “Raskolnikov,” an individual suspected of committing a double‐homicide, and “Porfiry,” the chief police detective charged with investigating the crime. Through an analysis of the actions of Raskolnikov and Porfiry, and how the two interact with each other, this Article raises and attempts to address important points regarding a defendant’s impulse to confess to his or her actions. This Article also analyzes the actions of a trained detective, Porfiry, and the strategies the detective employs to elicit a confession from the suspect, Raskolnikov. As a secondary theme, again through the prism of analyzing these two characters in Crime and Punishment, the author draws several conclusions about the importance of legal representation in order to protect defendants and help avoid damaging confessions elicited by savvy police tactics. As described by Dostoevsky in the book itself, there is a particular "psychology of a criminal before and after the crime" and the police "have a psychology of their own" in dealing with those suspected of crimes. These psychologies are analyzed in this article. This Article falls within the Law & Literature genre—that is articles which utilize classical works of literature to illustrate various principles of law and the legal profession. Striking Down the Impervious Shields: Why Caveat Emptor Must Be Abandoned In Commercial Real Property Sales and Leases Gregory L. Pierson 111 The Florida Supreme Court’s failure to abandon the caveat emptor doctrine and impose a duty to disclose on the sellers and lessors in commercial real property sales and leases is harmful to prospective purchasers and lessees. Holding property purchasers and lessees to a different standard depending on the land use categorization of the property harms these parties by affording them less protection, and doing so is not grounded in any legitimate justification. First, this Article examines two principal cases that established the status quo for caveat emptor and the disclosure duty in real property transactions: Johnson v. Davis and Futura Realty v. Lone Star Building Centers, Inc. Second, this Article discusses Haskell Co. v. Lane Co.—highlighting the problems that the inconsistent standard poses—and analyzes Agrobin, Inc. v. Botanica Development Associates, Inc.—a case which further muddied the waters because the court’s holding was divorced from Johnson and Futura precedents. Finally, this Article proposes a solution by examining the Johnson nondisclosure action and arguing that the Florida Legislature should provide a broad definition for nondisclosure, and apply this standard to both residential and commercial real estate leases and sales. Alternatively, it argues that if the Florida ii Legislature does not eradicate the caveat emptor doctrine in commercial property sales and leases, lawmakers should at least establish a bright line rule for distinguishing between residential real property and commercial property. In Harm’s Way: The Desperate Need to Update America’s Free Speech Model Qasim Rashid 143 America’s current free speech model is archaic. This Article argues that unprecedented advances in communications technology, while beneficial for countless purposes, have created an imbalance in America’s free speech model. This imbalance leaves innocent third parties dangerously exposed to harm. Despite its countless benefits, the Internet is an excellent example, as it affords its users the ability to make incendiary mass public statements that may incite violence. Under the current model, an instigator has zero accountability for remotely inducing harms that are a physically proximate result of his actions. This Article proposes a practical model to remedy the current imbalance that technological advances have caused. This revised model would protect innocent third parties from harm while ensuring free speech is not unjustly chilled. STUDENT WORK Dazed and Confused:* The Need for Clarity in Dodd‐Frank’s Abusive Standard Albert Evan Dix 185 Since the inception of the Dodd‐Frank Act and the Consumer Finance Protection Bureau (hereinafter “CFPB”), there has been much debate on what constitutes an abusive act or practice. One of the most paramount abusive debt collection practices is using an intimidating means of communication with customers. Such abusive language is determined by the natural consequence of the debt collector’s actions. The repetition of phone calls is also another factor taken into consideration when determining abusive conduct. The creation of the Dodd‐Frank Act was responsible for adding abusiveness, which works in conjunction with the unfairness and deception established in

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