Digital Commons Network^™

Elimination Of Automatic Judgment Liens In Missouri, William H. Henning

Faculty Scholarship

The traditional automatic judgment lien on real property following rendition of a money judgment has been statutorily eliminated. Judgment liens are now dependent upon the filing of an abstract of the judgment by the court clerk, but the implementing legislation contains ambiguities that raise issues regarding the scope of such liens.

The All-Time All-Star All-Era Supreme Court, James E. Hambleton

Faculty Scholarship

A lot of people have come up with lists of "great" judges. Here's the list to end all lists: a distillation of everyone's choice for the greatest justices of the United States Supreme Court.

Computers And The Law, James Hambleton, David Matone

Faculty Scholarship

The Computer can manipulate information and retrieve it in ways which traditional sources of legal research cannot. Using a traditional legal research book, the attorney is tied to the indexing and abstracting which the legal editor has used. Searching for a case on Ford Pinto crashes, where does the attorney start? Are these cases indexed under "Automobiles," "Products Liability," or "Torts?" The attorney has to second guess the indexer.

Using the computer, the attorney is not tied to any indexing system. Rather than containing just digest paragraphs or abstracts, the computer database holds the full text of case decisions. By …

The Impact Of Revised Article 9 On Missouri's Fixture Financing Scheme, William H. Henning

Faculty Scholarship

In 1963, Missouri adopted the Uniform Commercial Code, including Article 9, which integrated the existing state laws governing the use of personal property as security. Since that time, significant revisions of Article 9 have been approved by the Code's national sponsors, representing substantial changes in the law of secured transactions. These revisions have been introduced in the Missouri legislature but have not yet been enacted. It seems reasonably certain that they will be enacted in the near future.

The area that has been more extensively revised than any other is Article 9's treatment of security interests in fixtures. These revisions …

Employer Withdrawal From Multiemployer Bargaining--Charles D. Bonanno Linen Service V. Nlrb, Franklin G. Snyder

Faculty Scholarship

Large numbers of employers in this country, particularly small businesses, are members of multiemployer bargaining units. Historically, employers and unions have been able to withdraw from those units when the bargaining process has reached a stalemate. A recent decision of the United States Supreme Court, however, has made it more difficult for employers to withdraw from multiemployer units even in the face of a prolonged bargaining impasse. The decision, which settles a long-standing dispute between the National Labor Relations Board (Board) and several circuit courts of appeals, is a boon to labor unions, for it prohibits employer withdrawal in the …

Nonjudicial Foreclosure Under Deed Of Trust May Be A Fraudulent Transfer Of Bankrupt's Property: Durrett V. Washington National Insurance Co., Franklin G. Snyder

Faculty Scholarship

In theory, the substantive rights of secured creditors such as mortgagees are affected much less by bankruptcy proceedings than those of unsecured creditors. In practice, however, bankruptcy proceedings have affected mortgagees. Filing a bankruptcy petition automatically stays pending foreclosures. Trustees in bankruptcy also can set aside foreclosures of certain liens obtained by unsecured creditors and certain mortgages and deeds of trust executed in the year preceding bankruptcy. The decision in Durrett adds yet another weapon to the bankruptcy trustee's arsenal: the power to void nonjudicial foreclosure sales even though the sale is proper and final under state law.

Intellectual Property, H. Dennis Kelly

Faculty Scholarship

Intellectual property refers to patents, trademarks, copyrights, and related matters. This subject has been absent from the symposium for two years. However, the importance of the cases in this area that were decided by the Fifth Circuit during the current survey period justifies a return of the subject to the symposium. The majority of these cases concern the validity of patents and are discussed in the first part of the Survey. The second part of the Survey is a discussion of an important case in the field of copyright law.

The Ohio Sunshine Act: An Appraisal, Frederic White

Faculty Scholarship

The Ohio open meetings or "Sunshine" law has existed in its present form since November 28, 1975 [hereinafter the "Sunshine Law" or "The Act"]. So-called open meeting legislation is neither new or unique to Ohio. Indeed, every state has enacted one or more open meetings laws. This article will examine the Sunshine Law to determine whether it has served its purpose, that is, making the processes of government more accessible to the citizens of the state of Ohio, and suggest some changes to increase the effectiveness of the legislation.

Environmental Law (1982), H. Dennis Kelly

Faculty Scholarship

During the survey period the major cases dealing with environmental law arose under one or both of two environmental statutes. This Article will first discuss the cases which arose under the National Environmental Policy Act of 1969. The second section of the Article will survey the cases decided under the Federal Water Pollution Control Act Amendments of 1972.

The Cleveland Housing Court Act: New Answer To An Old Problem, Frederic P. White

Faculty Scholarship

The operations of the Cleveland Municipal housing court commenced April 2, 1980. The Housing Court, a division of the Cleveland Municipal Court system, was established to resolve all housing-related disputes. While considered by some as a welcome solution to overcrowded court dockets, others view it as simply another unnecessary cog in an already overburdened bureaucratic wheel. Close examination indicates, however, that there is a serious question as to whether this specialized judicial division is in fact meeting its intended purpose.

This Article will critically examine the Housing Court's historical setting, constitutional foundation and jurisdictional powers. In addition, comparison with systems …

Article Nine's Treatment Of Commingled Cash Proceeds In Non-Insolvency Cases, William H. Henning

Faculty Scholarship

One of the most difficult questions arising under Article 9 of the Uniform Commercial Code is the extent to which a secured party's interest in collateral continues to be enforceable against the proceeds generated upon disposition of that collateral. Much of the difficulty surrounding this issue springs from the fact that proceeds occupy a position at the nexus of two competing Code policies. On the one hand, Article 9 validates the floating lien and minimizes the extent to which a secured party must continue to "police" a transaction once his interest has been perfected. On the other hand, it is …

The Insanity Defense In Juvenile Delinquency Proceedings, Maxine M. Harrington, Ann O'Regan Keary

Faculty Scholarship

The insanity defense in delinquency proceedings poses an important legal dilemma concerning the rights of children in the juvenile justice system. Indeed, beyond the purely legal concerns of the rights of an accused juvenile, the concept of criminal responsibility in the context of juvenile court proceedings raises perhaps an even more important issue of what is the best model for dealing with mentally ill juvenile offenders, both from the juvenile's viewpoint and that of society as a whole. It is our opinion that not only does the insanity defense have an appropriate role in juvenile proceedings, but that legal as …

E. Wayne Thode - 1920-1980, Frank W. Elliott

Faculty Scholarship

Wayne Thode made equal contributions to the development of law students. He was loved and admired by all the students with whom he came into contact and particularly those during his short stay at Texas Tech.

The Impact Of The Texas Medical Liability And Insurance Improvement Act On Informed Consent Recovery In Medical Malpractice Litigation, Frank W. Elliott

Faculty Scholarship

This article describes changes to the Texas Medical Liability and Insurance Improvement Act.

Survey Of Cases Decided By The Fifth Circuit Court Of Appeals: Introduction, Frank W. Elliott

Faculty Scholarship

This symposium includes scholarly analyses of fresh, important cases decided by the Fifth Circuit during the past year. It also includes a scholarly analysis of problems and possible solutions for the Circuit's overcrowded conditions. We can only hope that it will not only contribute to the better functioning of its readers as lawyers, but also to a better solution of the problems of judicial administration within the Circuit.

Shaffer V. Heitner: A New Attitude Toward State Court Jurisdiction, Paul George

Faculty Scholarship

Mr. Justice Frankfurter's observation is equally suited to the overruling of the century-old case, Pennoyer v. Neff, by the recent decision in Shaffer v. Heitner Shaffer ended not only Pennoyer's reign, but also a jurisdictional perspective which rested on the distinction between in personam and in rem jurisdiction and the concept of a state's sovereignty over property within its borders. The basis of the Pennoyer doctrine was the concept that a state had authority over all persons and property within its territory, and no authority whatsoever outside its territorial limits. Modifying previous theory slightly, Pennoyer became the …

Javorek V. Larson: Insurer's Obligation To Defend And Indemnify Insufficient To Establish Jurisdiction--Seider Sours In California, James P. George

Faculty Scholarship

With its recent decision in Javorek v. Larson, the California Supreme Court has joined the growing number of states which have rejected the exercise of jurisdiction based upon the quasi in rem attachment of automobile liability insurance policies. This particular jurisdictional basis was first recognized in the New York case of Seider v. Roth, where the insurer's obligation to defend and indemnify the insured was found to be an attachable debt, yielding jurisdiction to the plaintiff's home state of New York, even though the defendant was a Canadian resident and the accident occurred in Vermont. The only …

Surface Water Flooding In Urban Areas: Rights And Remedies Under The Common-Enemy Doctrine, James P. George

Faculty Scholarship

Urban flooding is an ever increasing problem as land development intensifies in expanding metropolitan areas. This situation not only has a significant impact on the physical environment, but has substantial legal consequences as well. In urban flooding situations, rivers and streams pose obvious flood threats, but the damaged area is generally restricted to a definable flood plain. Surface water presents a more subtle and pervasive problem; with heavy rainfall or poor drainage, surface runoff can submerge land not ordinarily considered subject to flood damage, further increasing riparian problems as the concentrated runoff finds its way to streams and rivers. Although …

Juris: Legal Information In The Department Of Justice, James E. Hambleton

Faculty Scholarship

JURIS is the computerized legal information system being developed by the Department of Justice for use by its attorneys. The system has been devised not only to help in statutory and case law research, but to provide access to memoranda, briefs, and other work products generated in daily departmental activity. From modest beginnings, JURIS has grown in use and in data-base capabilities. JURIS search strategy, which involves building up sets of data into a search "tree" has proven to be effective for its users. After a year-long evaluation project was completed in May 1975, the results indicated enough user acceptance …

Evidence, Frank W. Elliott

Faculty Scholarship

During the past year there were a number of cases of interest dealing with various aspects of the hearsay rule.

Part Ii: Procedural Law - Evidence (1973), Frank W. Elliott

Faculty Scholarship

During the past year the cases of greatest significance in the law of evidence seem to fall under the general classification of hearsay. Each of the cases selected for examination considers several exceptions to the hearsay rule.

Part Ii: Procedural Law - Evidence (1972), Frank W. Elliott

Faculty Scholarship

Although no really significant cases on the law of evidence were decided during the past year, there were several interesting developments dealing with impeachment by prior conviction, presumptions, the names of witnesses, and considerations on motions for summary judgment.

Part Ii: Procedural Law - Evidence (1971), Frank W. Elliott

Faculty Scholarship

During the year under review the cases of greatest significance for those who seek to remain abreast of current developments were those dealing with impeachment by prior conviction, presumptions, and hearsay evidence.

Volksgeist And A Piece Of Sulphur, Frank W. Elliott

Faculty Scholarship

Savigny was a principal architect of the historical theory of jurisprudence which holds that law must be consonant with the spirit of the people it governs. In his own times, however, he was more than a philosopher. As a participant in a great debate, Savigny developed his theory as a weapon to resist the wholesale imposition of a legal code which he regarded as alien to and ill suited for the emerging German states. Professor Elliott explores the thought of this controversial man in a fashion which is of interest not only to the philosopher and historian, but also to …

Fractional Mineral Deed Subject To A Lease, Frank W. Elliott Jr

Faculty Scholarship

This article analyzes the difficulty in construing mineral deeds made subject to an existing lease as pointed out in Garrett v. Dils Co., 299 S.W.2d 904 (Tex. Sup. Ct. 1957).

Legal Effect Of Voluntary Pooling And Unitization: Theories And Party Practice, Joseph J. French Jr, Frank W. Elliott

Faculty Scholarship

The pooling or combining of smaller tracts is a recognized and expanding practice in the oil and gas industry. Consequently, it is important to understand the precise legal effect of pooling and unitization. In a typical situation, if A owns tract 1 and B owns tract 2, and A and B lease their tracts to X and Y respectively, it is clear that B would not share in the production from a well located on A's tract. However, if tract 2 is pooled or unitized with tract 1, B would be permitted to share in the royalties from a …

Notes - Conflict Of Laws-Workmen's Compensation-Constitutional Law-Receipt Of Workmen's Comensation Benefits In Domiciliary State Does Not Bar A Tor Action In State Where Injury Occurred.-Carrol V. Lanza, 75 Sup. Ct. 804 (1955), Frank W. Elliott

Faculty Scholarship

The plaintiff sued to set aside a trustee's deed in favor of the defendant. After the case was set for trial on the jury docket, the court appointed a master in chancery. The plaintiff's objections to the appointment and to the master's report were overruled and he was not allowed to submit any evidence to the court, which adopted the master's findings. Held, reversed and remanded; the court is authorized to appoint a master only in exceptional cases and for good cause, and if the plaintiff objects to the report, he is entitled to a jury trial on the …

Notes - Libel And Slander—Lis Pendens—Filing Of Lis Pendens Notice Not Privileged.—Albertson V. Raboff, 287 P.2d 145 (Cal. 1955), Frank W. Elliott

Faculty Scholarship

In a prior action Raboff had sued Albertson, seeking a money judgment and either a lien on Albertson's real property or a judgment declaring that her title was obtained, in fraud of creditors. Raboff recorded a notice of pendency of this action and subsequently obtained a money judgment, but Albertson prevailed on the counts concerning the real property. In the present action, Albertson alleged that Raboff had known when he had filed his prior complaint that he had no right to an interest in her property, that he had nevertheless knowingly and maliciously asserted false claims thereto, and that by …

Notes - Admiralty-Claims Agent's Misreporentation Of Law Held Not To Vitiate Seaman's Agreement Releasing Shipowner-Thompson V. Coastal Oil Co., 218 F.2d 664 (3d Cir. 1955), Frank W. Elliott

Faculty Scholarship

Because of failure of consideration the defendant stopped payment of a check deposited with the plaintiff bank, which before receiving notice of the stop order had permitted the payee-depositor to withdraw the amount represented by the check. The trial court entered judgment for the defendant. Reversed and rendered. The court stated, inter alia, that the defendant had the burden of establishing that the bank "had not become a party thereto for value."

Notes - Banks And Banking—Bills And Notes—Rights Of Depositary Bank Against Drawer Of Check.—City State Bank V. Lummus, Frank W. Elliott

Faculty Scholarship

Because of failure of consideration the defendant stopped payment of a check deposited with the plaintiff bank, which before receiving notice of the stop order had permitted the payee-depositor to withdraw the amount represented by the check. The trial court entered judgment for the defendant. Reversed and rendered. The court stated, inter alia, that the defendant had the burden of establishing that the bank "had not become a party thereto for value."