Stetson Law Review

STETSON LAW REVIEW VOLUME 46 WINTER 2017 NUMBER 2 EFFECTIVE ADVOCACY IN A TERRITORIAL JURISDICTION SYMPOSIUM INTRODUCTION Symposium Introduction Kristen David Adams 227 ARTICLES Past, Present, and Future of U.S. Territories: Expansion, Colonialism, and Self-Determination Carlos Iván Gorrín Peralta 233 For more than one hundred years, the United States has submitted the people of Puerto Rico to colonial rule through the power of the U.S. Congress over the territories. Many Puerto Ricans are dissatisfied with U.S. territorial policy, and people in the United States are finally starting to learn about this policy, largely due to Puerto Rico’s $72 billion public debt that threatens the U.S. bond market. This Article presents a historical overview of U.S. territorial expansion, examining the policy transformations and constitutional relations that have developed between the United States and its territories. The Author begins by presenting a historical overview of U.S. territorial expansion in the eighteenth and nineteenth centuries and examines how its territorial policy shifted at the turn of the twentieth century, shortly after the United States annexed territories in the Spanish- American War. The Author then argues that the United States’ constitutional relation with Puerto Rico deprives the country of sovereignty, contradicts the values on which the United States was established, and violates international norms that recognize the collective human right of self-determination. Ultimately, the Author concludes that the time has come to abandon the current territorial regime, which harms the territories—including Puerto Rico—and demeans the United States. The Author suggests that better options include admitting the territories as new states, establishing a treaty of free association, or recognizing the full independence of Puerto Rico. Equally American: Amending the Constitution to Provide Voting Rights in U.S. Territories and the District of Columbia Neil Weare 259 Today, nearly five million Americans are treated as second-class citizens, denied full voting rights and representation in the national government simply because they live in U.S. Territories or the District of Columbia. The political realities in these “non-state” areas have fundamentally changed since the Constitution was ratified in 1788—the Territories were never meant to be quasi-permanent colonies and the District was not expected to be a major metropolitan city. This Article proposes a voting rights amendment to the U.S. Constitution that would bring the twenty- first century realities facing Americans in non-state areas in accordance with America’s most fundamental constitutional principles and democratic values. The Author begins by examining both the historical and modern understandings of representation in the national government.A foundational American principle is that federally elected officials represent “We the People of the United States,” not We the People of the States United. The Author traces this principle through relevant caselaw and the expansion of voting rights through previous amendments to the U.S. Constitution. To realize this principle in non-state areas, the Author proposes an amendment to the U.S. Constitution. The amendment would most notably include full participation in presidential elections, and representation in the Senate and the House of Representatives. The Author reasons this amendment would bring emerging political opportunities for either party, and ultimately would effectuate the meaning of the U.S. Constitution—“We the People of the United States.” Too Big to Fail: Banks and the Reception of the Common Law in the U.S. Virgin Islands Joseph T. Gasper II 295 In 1921, the U.S. Virgin Islands enacted a common law reception statute adopting the common law of England. Almost one hundred years later, in Banks v. International Rental & Leasing Corp., the Virgin Islands Supreme Court held that its establishment as the court of last resort allowed it to shape the common law, and was thereby a de facto repeal of the reception statute. Notably, no other American state or territory had ever invalidated a reception statute in its entirety. While the effects were not immediately apparent, the past several years have demonstrated the remarkable impact of the court’s decision. However, the decision has precipitated numerous unintended consequences. This Article explains the reasoning behind the Banks decision and the subsequent development of the law. The Author begins by examining the history of how other jurisdictions received the common law in an attempt to place the Virgin Islands within the national context. The Article also traces the history of the 1921 reception statute and its subsequent invalidation by the Virgin Islands Supreme Court. Ultimately, the Article argues for a clarification on Banks and for the reenactment of the reception statute, albeit without the historiC “restatement mandate.” By eliminating the “restatement mandate” from the reception statute, the Legislature can preserve common law while simultaneously upholding its creation of a court of last resort. A Common Law of and for the Virgin Islands James L. Huffman 367 In Banks v. International Rental & Leasing Corp., the Virgin Islands Supreme Court departed from a provision in the Virgin Islands Code that had adopted the American Law Institute’s restatements as the common law of the Virgin Islands. Before Banks, the common law of the Virgin Islands was entirely imported, was implemented all at once instead of over time, and possessed no inherently local or homegrown properties. Accordingly, Virgin Islands courts were essentially applying the common law of other jurisdictions. However, Banks caused a paradigm shift that has allowed Virgin Islands courts to begin cultivating a common law tailored to the specific needs of the people it governs without automatically deferring to the restatements. This Article begins by analyzing the historical nature of the common law process. Notably, the Author argues that because the common law of a particular locality is founded on its ever-evolving customs, it is necessary for judges to consider the expectations and objectives of those affected when shaping the contours of existing precedent. Next, the Article focuses on Banks, explaining in detail the analysis it mandates when a Virgin ii Islands court is deciding whether to ratify a restatement rule or adopt a better alternative. Then, the Author examines how Virgin Islands superior courts have applied the Banks analysis. This comprehensive review reveals that while some superior courts misapprehended their duty to reexamine the merits of a challenged restatement rule, others considered local needs and circumstances in determining the soundest rule for the Virgin Islands. Ultimately, the Author concludes that if Virgin Islands courts rely on the demonstrated preferences of Virgin Islanders when determining the soundest rule for the jurisdiction, they will be able to suCCessfully develop an organic common law of and for the Virgin Islands. Living with Banks: Trends and Lessons From the First Five Years Kristen David Adams 391 In the 2011 seminal case of Banks v. International Rental & Leasing Corp., the Virgin Islands Supreme Court significantly altered the analytical framework that Virgin Islands courts must follow when deciding issues of first impression. Prior to Banks, Virgin Islands courts were statutorily obligated to follow the American Law Institute’s Restatements of the Law when adjudicating novel legal issues. However, Banks implicitly abolished that statutory obligation and replaced it with a three-pronged test, commonly referred to as a Banks analysis. Since Banks was decided, at least 120 cases have referenced the decision when analyzing issues of first impression in the Virgin Islands. This Article examines that body of caselaw and identifies some trends and best practices that have developed after Banks was decided. The Author begins by examining the continuing influence of the Restatements after Banks and argues that, although Banks has become the controlling doctrinal test, the Restatements still provide influence in the Virgin Islands. However, despite this influence, the Author emphasizes that litigants should not confuse the current persuasive power of the Restatements with the legal force they had prior to Banks. In addition, the Author reasons that courts applying Banks have provided guidance in which litigants should take note. For example, Virgin Islands courts have suggested that litigants are now required to take an active role in matters of first impression by including a Banks analysis in their legal briefs. The Author also provides examples of when a court may refuse to conduct a Banks analysis. Further, the Author evaluates which factor of the Banks analysis, if any, is controlling when a court conducts such an analysis. Ultimately, the Author concludes that Banks has unquestionably improved the jurisprudence of the Virgin Islands. Now that the decision has reached maturity, it should provide even more clarity and consistency to Virgin Islands caselaw for years to come. STUDENT WORK Trouble in Paradise? Examining the Jurisdictional and Precedential Relationships Affecting the Virgin Islands Judiciary Katy Womble and Courtney Cox Hatcher 441 This Article analyzes the complex and intriguing interplay among the several courts governing the United States Virgin Islands. The Authors begin by discussing the early history of the Virgin Islands,

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