Volume 4, Issue 14, November 20, 2013



What’s Going On

November 20: 

Special Exam-Time Blessing and Prayer, Room 219 @ 1:00 p.m.

Nov. 26-Dec. 1:

Reading Days

December 2-12

Fianal Exam Period

December 13:

Baccalaureate Mass, Chapel of St. Anthony @ 7:00 p.m.

December 14:

Commencement Ceremony, Fernandez Family Center for Leadership @ 10:00 a.m.

December 14:

Graduation Reception, Cordero Breezeway

As we are about to begin the final exam period, most students, and particularly those of you taking exams for the first time, feel some anxiety and concern about successfully navigating the process. Remember, your objective is to demonstrate your understanding of the material as it is tested by the professor. You should make sure you are fully aware of the testing methods that will be used by your professors, and make sure you know the guidelines that will be applicable to the exam (e.g., how much time, whether it is open book or closed book, etc.). My office and the Law School Registrar’s Office are charged with the responsibly of administering the examinations. With thousands of examinations to oversee, this can be a daunting task. Therefore, you have the responsibility to see to it that you know how the process works. Below are some guidelines you should keep in mind. If you have any question or need clarification, please contact Assistant Dean Hernandez at jhernandez@stu.edu.

1. Know when and where each of your examinations is scheduled. Do not rely on your memory or what may have been an earlier version of the exam schedule. Check the most recent exam schedule. Write out your schedule, and post it where you can see it. If you arrive late or miss an exam, it is not likely you will be able to take the exam, and you will get an F in the class.

2. Make yourself aware of what the professor is allowing you to use in the exam. If an exam is “closed book,” you will not be able to use any kind of notes or have any books or materials with you. If the professor is allowing some kind of rule book or some limitation on the number of pages of an outline or notes, make sure you understand exactly what will be allowed. For example, if the professor allows five pages of notes, does that mean five pages front and back or just five pages on the front? If a professor is allowing the use of a rule book, that may not necessarily mean you can use a photocopy of the rule book, and it may be limited to certain editions or other limitations. Make sure you know and understand. If a professor is allowing you the use of a calculator, you need to make sure you have one that complies with his or her rule.

3. Unless the professor has indicated otherwise, all essay-style examinations can be taken either by use of ExamSoft or by submitting your response handwritten in blue books. Your grade is not affected by the format you use. It depends on the content of the examination. That being said, if you are handwriting your examination answers, they need to be legible. If you are using ExamSoft you need to be careful to avoid cutting and pasting that ends up making no sense. If you are using ExamSoft, make sure you have registered and followed the download directions that were provided by the Registrar. The law school does not provide computers, so you have to supply your own computer. You always use ExamSoft at your own risk. Although it is a highly reliable, if you experience problems with ExamSoft, be prepared to switch to hand writing the exam.

4. When you take multiple choice examinations that require that your answers be entered on a Scantron Answer Sheet, you need to pay close attention to correctly entering the response to the correct question. These are graded by a machine. If you intentionally or inadvertently skip a question and then enter the answers in a way that each answer is one question off, your grade will still be determined by the entries on the Scantron Answer sheet, not where you “intended” to put the answer. Also, if the professor is requiring that you use a Scantron answer entries on the examination booklet are not considered, and no additional time is provided to “fill in” the Scantron. So, you have to make sure you have made your entries on the Scantron Answer sheet within the time constraints of the examination.

5. Arrive early for your exams, and make sure you follow the directions of the proctors. Cell phones must be turned off and left in the front of the room. You must never be found in possession of a cell phone, e-tablet, or other such device during the administration of the examination. Be sure you do not inadvertently take your phone with you to the restroom. If you found to have taken a phone with you to the restroom that is an Honor Code violation. You should consider leaving your cell phone in your car. If your cell phone goes off during an exam, your phone may be retained until the end of the exam period.

6. Avoid even the appearance of impropriety with regard to exam procedures. Any student caught engaging in any activity that presents the possibility of cheating will be referred to the Honor Council. Students determined to have engaged in any cheating-like behavior generally are expelled. Do not have notes, pieces of paper, or anything not allowed for use in the exam on your person or near you. Do not throw away outlines in the restroom garbage cans or leave notes or outlines in the restroom. Do not talk to anyone if you leave an exam to use the restroom.

Avoid frequent or prolonged restroom breaks. Proctors and the administration will be policing such behavior. If you have a physical condition that may cause you to engage in what might otherwise be suspicious activity, please inform Assistant Dean Hernandez.

7. If you wish to use some kind of noise deadening device other than foam ear plugs then you must have the device preapproved by Assistant Dean Hernandez. Bring the device to me at your earliest convenience.

8. The proctors are there to make sure all students take the examinations in a controlled environment. Proctors will be walking around the rooms and looking at you while you take the examinations. That is their job. You should get used to this kind of observation during exam taking. It is employed on the Bar exam as well. Follow the directions of the proctors. Avoid creating situations that lend themselves to confusion or misunderstandings. Do not talk to each other or engage in any kind of interaction with other students while the proctors are gathering the examinations at the end of the examination. If you encounter what you think is inappropriate behavior on the part of the proctors (e.g., proctors talking on their phones during one of your exams), please report that to Assistant Dean Hernandez.

9. The class professor, and various Law School Administrators, may walk in and out of the examinations to make sure there are no problems or concerns. The class professor cannot answer individual questions. If you have a question, ask the proctor for clarification.

10. Never walk out of an examination with the examination question(s), Scantron answer sheets, or bluebooks. Do not rush to get out of the examinations. It is important you organize your materials and take a few minutes to make sure you have turned in everything you are required to turn in. This is especially true if it is an open book exam. Do not mix the examination materials with the materials you brought into the room. If you exit the examination with examination materials, you will receive an “F” on the examination and be referred to the Honor Council.

11. Prior to going into an exam, take a few moments and make sure you have what you need and nothing more. Prior to exiting an exam, take a few moments, and make sure you have followed all directions and turned in all materials.

12. If you get sick on the day of an exam, go to physician get documentation and immediately e-mail Assistant Dean Hernandez.

In a decision filed on November 7, 2013, the Eleventh Circuit Court of Appeals decided Donawa v. U.S. Attorney General (No. 12-13526), and sustained the argument of Professor Michael Vastine on behalf of one of the Immigration Law Clinic clients, Dwight Donawa. The court had to resolve the issue of whether a conviction under Fla. Stat. Section 893.13 (1)(a)(2), involving the possession with the intent to sell or deliver cannabis, was an “aggravated felony” under federal immigration law. If violation of the state law was “categorically” an aggravated felony then Mr. Donawa would be automatically deportable and no discretionary relief from removal would be available to him.

In 2002, the Florida legislature modified Fla. Stat. 893.13 by enacting Fla. Stat. 893.101, explicitly eliminating the mens rea requirement, thus permitting conviction without the state proving that a defendant “knowingly” delivered a controlled substance. Innocence (lack of knowledge) may be raised by the defendant as an affirmative defense, but the jury is instructed to presume guilty intent. The scheme, resulting in perhaps the most punitive quasi-strict liability statute in the country, has been the subject of intense state and federal litigation. The Florida Supreme Court recently upheld the scheme as constitutional in Atkins v. State, and the Eleventh Circuit deferred to this result, albeit only pursuant to the very deferential standard of review, in Shelton v. Dep’t of Corrections.

Rather than solely relying on an immigration defense dependent on challenging the statute’s constitutionality, in late 2011, Prof. Vastine argued to the immigration court that the distinct scheme could not constitute an aggravated felony because it was not directly analogous to any federal felony offense (a student argued the same theory in a near-identical case, but Vastine had argued for Donawa because the hearing was during the winter break). The case relied on Lopez v. Gonzales (2006), in which the U.S. Supreme Court held that a state drug offense is only an “aggravated felony” for immigration purposes if the exact criminal conduct is punishable as a felony under the federal Controlled Substances Act.

Finding Professor Vastine’s argument persuasive, the Eleventh Circuit held that a generic conviction under the Florida Statute is not categorically an aggravated felony. The court agreed that the missing intent element in the Florida statute barred a finding that violation of the statute constituted the Federal definition of an “aggravated felony.” Under the recent U.S. Supreme Court decision in Descamps v. United States (2013), Donawa would be presumed to have committed the least culpable conduct penalized under the statute, and, therefore, could meet his burden to prove that he is eligible for discretionary relief. In remanding the case, the court directed the Board of Immigration Appeals to address a related issue that the BIA had failed to address in its earlier decision, namely whether the offense necessarily involved “commercial dealing.” However, because the statute lacks intent, does not require proof of remuneration and is silent as to amount involved, it is expected that Donawa will prevail on this inquiry as well

Mr. Donawa has lived in the United States as a permanent lawful resident since 1985. He has no other convictions. The Eleventh Circuit decision paves the way for him to eventually have a day in court to demonstrate that he merits a favorable exercise of discretion, rather than being summarily deported. Professor Vastine and the students who participate in the Immigration Clinic have time and time again proven to an invaluable resource to the immigrant community.

The 2013-2014 Mock Trial E-Board, coaches, and team would like to congratulate the following students on their selection to full-member status on the St. Thomas Law Mock Trial Team: Ashley Cesarano, Ricardo Clerge, Lorena Duarte, Elizabeth Fernandez, Brian Fery, Luis Golondrino, Assad Gaddi, Viviana Garcia, Shawn Gibbons, Roberto Gonzalez, Anthony Merrill, Nicia Mejia, Alexis Pineda, Shaun Quinn, and Walking Taylor.

We congratulate the 2013 -2014 Donor Scholarship Recipients.

Scholarship Recipient(s)
Jacqueline Allee Scholarship
Vivian de la Rosa & Kathyrn Lecusay
C. Clyde Atkins Memorial Scholarship
Cynthia Lane
Benvenuti-Mulvey Scholarship
Danny Byers, Kaysia Earley, Patricio Estupinan, Albert Li, Andrew Mich, Shaun Quinn, Ryan Sarhan, Loxanne Taylor, and Walwin Taylor 
Jose Angel Espino Memorial Scholarship
Yasmany Barroso
James “Jamie” Harkins Scholarship
Lee DeForest
Richard A. & Jeannette F. Hausler Scholarship
Haminy Silva
Darryl G. Menzies Memorial Scholarship
Zachary Smith
Mary Russomanno Scholarship for Women Emeami Bestman

The Wilkie D. Ferguson, Jr. Bar Foundation is accepting applications for the 2014 Wilkie D. Ferguson, Jr. Bar Foundation Scholarship. An essay, two reference letters, official law school transcripts, and the scholarship application must be submitted to the Wilkie D. Ferguson, Jr. Bar Foundation by, 5:00 p.m., Friday, January 15, 2014.

Minority students are encouraged to apply, but all students are eligible. Assistant Dean John Hernandez sent an e-mail on November 12, 2013, with the application for this scholarship. The scholarship recipient will be invited to attend the Foundation’s annual awards gala on Saturday, March 1, 2014. If you have questions about the application, please contact Nydia Streets at (305) 329-2560 or via e-mail at nydia@varila.com.

The National Center for Victims of Crime, in conjunction with Florida Council against Sexual Violence, Florida Sheriff's Association, Florida Coalition Against Human Trafficking, Victim Service Center of Central Florida, Florida Police Chiefs Association, St. Thomas School of Law, and Safe Children Coalition, will be offering a free training seminar (at St. Thomas University School of Law); for criminal justice practitioners, victim advocates, law enforcement officers, SANE nurses, mental health therapists, and other allied professionals.

The seminar, Civil Justice for Victims of Crime in Florida, will explore how victims of sexual assault, domestic violence, stalking, child sex abuse, drunk driving, homicide, workplace violence, terrorism, elder abuse, identity theft and financial and property crimes can use civil lawsuits to obtain justice, hold responsible parties accountable, prevent future crimes, and obtain the financial resources victims need to rebuild their lives. The program will cover resources and strategies for victims considering civil lawsuits, and will include a panel of attorneys to answer specific questions of Florida law.

The seminar will be held on December 18, 2013, from 9:00 a.m. to 4:30 p.m. A continental breakfast and a complimentary lunch will be provided. There is no cost to attend, but space is limited, so please reserve your space today. To register online, use the following link: https://www.signup4.net/public/ap.aspx?EID=MIAM36E&OID=50

Professor Ira Steven Nathenson was a signatory to two highly visible submissions to governmental authorities on critical matters concerning intellectual property. The first was a letter jointly signed by more than 80 law professors submitted to President Obama, members of Congress, and the U.S. Trade Representative demanding greater transparency in the negotiations of the Trans Pacific Partnership Agreement (TPP). As a law professor writing about matters of transparency, Professor Nathenson was asked to be one of the initial signatories. Details may be found at http://infojustice.org/archives/31217, and the letter at http://infojustice.org/wp-content/uploads/2013/11/Law-Professors-TPP-11142013.pdf. The second submission was an amicus brief to the United States Court of Appeals for the Second Circuit in support of the defendant in Viacom v. YouTube. The brief argues that the court should not disturb the careful balance Congress created regarding digital copyright in order to ensure "an equitable balance among copyright holders, service providers, and ordinary Internet users." The brief is at https://www.eff.org/files/2013/11/01/amicus_brief_31_intellectual_property_and_internet_law_professors.pdf

On November 13, 2013, Professor Roza Pati participated at a roundtable discussion of academics and advocacy groups organized by the Governor’s Office Florida’s Battle Against Human Trafficking Initiative,” and sponsored by The Department of Business & Professional Regulation. The roundtable aimed at informing and educating DBPR personnel about how they can help combat human trafficking. Government officials, law enforcement personnel, and service providers appreciated the training opportunities offered by St. Thomas Law School’s Human Trafficking Academy, which will be offered again in Summer 2014.

Professor Pati also participated at the meeting of the Coalition of Catholic Organizations against Human Trafficking, as it celebrated its tenth anniversary with a summit on November 9, 2013, in Baltimore, during the U.S. Conference of Catholic Bishops’ annual fall General Assembly. As a member of the Education Committee for the Coalition, Professor Pati’s contribution focuses in promoting responsible consumer practices by highlighting forced and exploitative labor practices in companies’ supply chains, and in supporting national legislation that combats human trafficking while promoting business transparency in supply chains.