Stetson Law Review

By Emmanuel Hiram Arnaud*

 Territorial governance has played a significant role in the development of our constitutional order. From the plenary power doctrine to sanctioning modern-day colonies, territorial expansion has prompted all branches of the federal government to confront tensions between divergent constitutional visions in the name of creating what Chief Justice John Marshall once called the “American Empire.” Yet, issues of territorial governance and expansion are often overlooked in both popular discussions and the law school curriculum. Within the legal academy, the constitutionally sanctioned discrimination of the unincorporated territories finds a natural home in constitutional law. However, I suggest that territorial governance plays a significant role in our understanding of criminal legal systems as well. 

In this Article, I encourage professors of criminal law and procedure to use the territories as examples that challenge and complicate the traditional narrative of their courses. Incorporating the territories requires us to re-imagine or reconstruct essential narratives about our courses, and I provide two examples of how to do so. First, and most relevant to criminal law, study of the territories challenges the proposition that criminal statutes are a genuine democratic expression, as territorial residents lack federal voting rights and, consequently, representative power in creating the federal criminal statutes that apply to them. Second, and most relevant to criminal procedure, the territories require us to reflect on established parts of the class, such as the jury trial right, because Puerto Ricans and American Samoans face overwhelming obstacles to serve on federal juries. Incorporating the territories into the criminal law and procedure curriculum is not only a helpful teaching tool, but it also prompts us to challenge and rethink fundamental aspects of our criminal legal system. 

By Setyo Laksono*

In late 2022, Indonesia passed a New Criminal Code. Supporters of the New Code claim that the Code better reflects Indonesian values and morals. However, many critics are concerned with a number of controversial provisions, including those related to morality such as cohabitation and sexual relationships. The controversy of Indonesia’s New Code provides a case study of the relationship between domestic and international law. While Indonesia, like all other nations, has the right to establish its own legal system, Indonesia is still a party to various international treaties. The Code’s morality provisions may breach these international agreements, specifically those codifying an individual’s right to privacy as a human right 

This Article will discuss the origins of the New Criminal Code and its controversial morality provisions. This Article argues that the morality provisions should be modified or removed because of the risk of discretionary enforcement, corruption, and extortion. Additionally, the Article will discuss the strong international response against the provisions and the provisions’ potential impact on the post-Covid Indonesian economy. Finally, the Article will evaluate the morality provisions’ impact on American citizens traveling to Indonesia and how to best navigate the new rules. 

By Dwyer Arce*

Since Congress granted the Virgin Islands the authority to adopt a constitution in 1978, several drafts have been proposed. Each of them was rejected either by Congress or the voters in the Virgin Islands. In January 2025, the delegates to the Sixth Constitutional Convention of the Virgin Islands will convene to try again—and hopefully succeed where their predecessors did not. 

This Article examines some of the reasons for the inability of the previous constitutional conventions to adopt a constitution and attempts to provide a roadmap for the success of the Sixth Constitutional Convention. This includes the full text of a proposed constitution for consideration by the Sixth Constitutional Convention. This Article advocates for the adoption of this proposed constitution, creating the Commonwealth of the Virgin Islands, a political entity in the model of the Commonwealth of Puerto Rico and the Commonwealth of the Northern Mariana Islands. The concept of a “Commonwealth” as applied to the governments of America’s territories brings with it a long legal history with well-developed legal principles. This will afford the Virgin Islands a level of internal control and autonomy never seen in a century under the American flag. 

The efforts to adopt a constitution for the Virgin Islands, and the continuing legal complexities that accompany its status as a territory, highlights perhaps the most significant hinderance in developing Virgin Islands law—the absence of a law school in the Territory. This Article concludes by examining the negative consequences of the lack of legal education in the Virgin Islands and advocates for the creation of the University of the Virgin Islands School of Law to facilitate the development of constitutional law in the Commonwealth of the Virgin Islands. 

By Cori Alonso-Yoder*

 Immigration law dominates national headlines and policy debates while immigrant communities struggle to secure legal representation. Law students are increasingly aware of these issues, often bringing lived experiences of the immigration system into the classroom. As immigration law professors seek to engage these students with doctrinal and clinical coursework, they often struggle to incorporate policy priorities and executive actions that shift with the political winds. In this tumult, many immigration law professors fail to realize there is an entire body of U.S. immigration law they are not teaching—the immigration law of the U.S. territories. Indeed, many professors may not know that two of the five territories are not even subject to U.S. immigration law. 

Yet, the operation of immigration law in American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the U.S. Virgin Islands offers a wealth of examples that reinforce existing themes and concepts in immigration law. 

This Article lays forward some of the central concepts taught in immigration legal doctrine and describes the immigration systems of the U.S. territories, including those exempt from federal immigration law. It then ties the legal principles at play in each system, including the central concept of the federal political branches’ “plenary power” over the territories and noncitizens alike, to topics presently taught in immigration law coursework. 

By Kristen David Adams & Brooke J. Bowman*

 “There are easy cases and there are hard cases, and this is a hard case.”  The newly minted law school graduate looked confused. 

Analogical reasoning is at the core of legal education, but it is not the only form of legal reasoning that lawyers employ. Lawyers can also expect to face open questions of law that will require skills and strategies not emphasized in the traditional pedagogy for first-year law students. These same skills and strategies are also crucial competencies for members of moot court boards, who are faced with open questions of law, or cases of first impression or circuit splits, in competitions every year. The Virgin Islands Supreme Court case of Banks v. International Rental & Leasing Corp. provides a tool to assist law students and practicing lawyers alike in presenting compelling, persuasive, well-organized arguments whenever open questions of law arise. In this Article, we propose that the traditional law-school pedagogy be modified to incorporate the Banks analysis as a teaching tool. 

By Emily A. Zott*

Every year, thousands of children are born via reproductive cell donors. Many parents find their donors through commercial cryobanks, which maintain catalogs of donors listing endless characteristics and achievements of donors, hoping to entice parents into the selection of one of that cyrobank’s donors. As the popularity of commercial DNA tests skyrockets and the first generation of donor-conceived children enter their mid-adulthood, there are increasing concerns surrounding the representations that these cryobanks made to parents purchasing donor reproductive cells. In describing the donor reproductive cells, cryobanks create express warranties. Gametes, like blood, do not look much like commercial goods, but in applying the legal standards and examining the policy surrounding blood shield statutes, the characterization of gametes as goods becomes clearer. 

This Article identifies the regulatory gaps in the donor conception industry and explores how the characterization of donor gametes as goods under the Uniform Commercial Code can provide donor-conceived families a remedy when cryobanks create warranties and subsequently breach those warranties. Finally, this Article proposes a legislative solution to ensure this remedy is not eliminated through crafty contracting. 

By Christos D. Strubakos*

While the contours of expanding presidential authority are the subject of much scholarship, the source of this expansion remains unexplored from a socio-psychological perspective. Many have approached this topic by analyzing Supreme Court jurisprudence or political dynamics, but few have considered what, if any, socio-psychological forces explain the President’s growing powers. Presidential approval ratings tend to soar following major national events, suggesting a profound psychological relationship between the American people and the President. This Article posits that accumulation of power in the Executive is an inherently psychological phenomenon rooted in human nature and constitutional principles. Although designed to curtail power, shared interests between the government and the people activated psychological forces that incited presidential power to evolve beyond the Constitution’s intent. An analysis of The Federalist papers indicates that the Framers understood these societal mechanisms and collective psychological forces. Moreover, due to heroization of political figures and increasingly diverse interests, the President receives significant public attention, leading to a greater concentration of power. This Article concludes by suggesting that a shift in the psycho-political emphasis from national to local governance will help realign the Framers’ vision of a community of interest between the government and the governed. 

By Amy Bitterman*

Just as fiction writers deliberate over name choice to create an impression about characters, advocates should also carefully consider how they identify clients in legal documents. While attorneys do not have the luxury of making up evocative names, they can decide whether to refer to a client by first name, last name, nickname, or legal status. In so doing, they should bear in mind the effect these choices may have in terms of generating empathy for their client and/or antipathy toward an adversary. For example, consistently referring to parties by title can help persuade a judge or jury that they are entitled to the rights and privileges typically accorded that status. 

Using examples from both literary works, including Alice Walker’s The Color Purple and Honoré de Balzac’s Colonel Chabert, as well as briefs, pleadings, and judicial opinions, such as United States v. Farmer, McFarland v. Miller, and United States. v. Choi, this Article explores the communicative power of: (1) nicknames, (2) first names, (3) gender prefixes, (4) honorifics, and (5) pronouns, and suggests ways counsel can harness this power in court submissions. 

By Rebecca Flanagan*

Law schools have embraced closed-book exams as one response to falling bar passage rates. But due to lack of student expertise in learning and study skills, students focus on memorization as the key to success on closed-book exams. A focus on memorization channels students’ attention away from building higher-order thinking skills, which are skills that must be built over time because they are essential to success on the bar exam and in practice. By choosing limited open-book exams, law professors and law schools minimize the student focus on memorization, and recenter student learning and study on techniques that produce durable learning and proficiency in higher-order thinking skills necessary for success on the bar exam. 

By Jesse J. Richardson, Jr.*

 Since the beginning of the United States, state and local governments have grappled over the division of authority between the two levels of government. The Tenth Amendment of the U.S. Constitution seems to resolve the issue by making states the default holders of power between the state and federal governments, with no mention of local governments. In the mid-1800s, Judge John Forrest Dillion of the Iowa Supreme Court and Justice Thomas Cooley of the Michigan Supreme Court set out apparently opposite propositions. Judge Dillon posited that local governments were mere “creatures of the state” that hold no authority except that which is explicitly granted by the state. Justice Cooley countered that local governments held some inherent self-governance authority. Judge Dillon’s view prevailed in the vast majority of states. 

The debate has escalated in recent years, with many controversial subjects of regulation at issue. Advocates for more local autonomy have been particularly vocal, culminating in a proposal for Principles of Home Rule for the 21st Century by the National League of Cities, advocating for sweeping local autonomy. 

Meanwhile, two relatively rural states, Nevada and West Virginia, implemented home rule programs that offer lessons for state and local policymakers across the country. This Article reviews the history and recent developments of home rule in the United States. The Nevada and West Virginia programs are reviewed in detail. The Author asserts that the West Virginia Home Rule Program offers a model for home rule in the United States, while Nevada’s program proves noteworthy by including counties. The Article concludes with policy recommendations for a practical and meaningful sharing of authority between state and local governments.