This Essay critiques the analytical framework used by the U.S. Court of Appeals for the Eleventh Circuit to determine when to enforce foreign forum selection clauses in cruise ship passenger contracts. In Estate of Myhra v. Royal Caribbean Cruises, Ltd., the Eleventh Circuit held that such clauses should be enforced even when the foreign court is likely to give effect to provisions in the Athens Convention that limit the liability of the cruise company. This approach is flawed, the Essay argues, because it fails to account for the fact that 46 U.S.C. § 30509 expressly prohibits cruise companies from utilizing contract provisions to limit their liability in passenger contracts. The Essay then looks to analogous cases from other areas of the law to propose a new analytical framework for evaluating when the courts should enforce foreign forum selection clauses in the cruise-ship context.
Founded in 1987 by law professors David Wexler and the late Bruce Winick, therapeutic jurisprudence (or “TJ”) is a multidisciplinary school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of law, policy, and legal institutions. In legal events and transactions, TJ inherently favors outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation. This article provides a meta-level examination of the field, including its origins, core doctrinal and theoretical foundations, critical reviews, expansion into many areas of law, procedure, and legal institutions, and connections with other modalities of legal theory and practice. Furthermore, it assesses TJ’s standing and considers opportunities and challenges for the field’s expansion and growth. The intended purpose of this article is two-fold: First, to spur discussions within the TJ community about the past, present, and future of the field; and second, to provide a substantive, yet accessible introduction to TJ for those who wish to learn more about it.
Nativist sentiments against classes of immigrants have existed since colonial times. But views about immigration and immigrants drive U.S. electoral politics now more than ever, accounting for a significant number of voters who crossed party lines in the 2016 presidential election. The COVID-19 pandemic has the potential to harden deeply-held beliefs about outsider threats and further entrench the polarization of public views on immigration. During his campaigns and term in office, President Trump popularized nativism, breaking from the received wisdom of the Republican party. Casting the virus as a foreign invader, he built on fears of the contagion to alter immigration policy in fundamental ways, including shutting down the border and eviscerating asylum protections. Nativism has allowed President Trump and his supporters to harmonize their contradictory beliefs that, on the one hand, anti-virus public health measures do not require strong collective action within the country, but, on the other, they justify extreme restrictions against immigrants. Over the long term, changing demographics and an increasingly positive view of immigrants and immigration signal that the country is on a trajectory to a more open society. In the short term, however, the Biden administration must contend with the surge of nativism stoked by President Trump and exacerbated by the COVID-19 pandemic.
