Digital Commons Network^™

Why Equity Follows The Law, Adam J. Macleod

Faculty Articles

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a …

Can Litigation Analytics Tell Us What Became Of The 2015 Proportionality Amendments To The Federal Rules Of Civil Procedure?, Patricia W. Moore

Faculty Articles

In 2015, the Federal Rules of Civil Procedure pertaining to discovery were amended for the seventh time in 40 years–part of a cyclic effort to address the so-called “cost and delay” of litigation. The centerpiece of the amendments was the reconfigured requirement that requested discovery be “proportional to the needs of the case,” in addition to being relevant and nonprivileged. The concept of “proportionality” crystallized the 2015 amendments in a single mantra. The proposed amendments inspired passionate and polarized public reactions. Plaintiffs’ attorneys opposed them as an impediment to obtaining the discovery they needed to prove their case, particularly in …

Public Accommodations Laws, Free Speech Challenges, And Limiting Principles In The Wake Of 303 Creative, Michael L. Smith

Faculty Articles

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the …

When Machines Can Be Judge, Jury, And Executioner: Justice In The Age Of Artificial Intelligence (Book Review), Stacy Fowler

Faculty Articles

In When Machines Can Be Judge, Jury, and Executioner, former federal judge Katherine Forrest raises concerns over the pervasive use of artificial intelligence (AI) in the American justice system to produce risks and need assessments (RNA) regarding the probability of recidivism for citizens charged with a crime. Forrest’s argument centers on AI’s primary focus on utilitarian outcomes when assessing liberty for individual citizens. This approach leads Forrest to the conclusion that in its current form, AI is “ill-suited to the criminal justice context.” Forrest contends that AI should instead be programmed to focus on John Rawl’ 'concept of justice as …

Military Women In World Cinema: A 20th Century History And Filmography, Introduction, Deborah A. Deacon, Stacy Fowler

Faculty Articles

From British soldier Flora Sandes to the fame World War II Night Witches of the Soviet Air Force, women across the globe stepped up to defend their countries during every major and minor conflict of the twentieth century, and filmmakers have long attempted to capture their stories.

This book analyzes real and fictional military women's portrayals in world cinema, including movies from Israel, the United Kingdom, Italy, China, France, the Soviet Union, and others. It includes theatrical releases, direct-to-video productions, and made-for-television films.

Chapters, organized by decade, address topics including the women's sexuality, maternal and marital status, leadership skills, actual …

Dinner With Andre: A Personal Tribute To Andre Hampton, David Dittfurth

Faculty Articles

A tribute to long-time St. Mary's University School of Law professor Andre Hampton upon his retirement.

"Grossly Negligent Utilities," "Unimaginable Property Damage" And The Scope Of Liability Insurers' Duty To Indemnify Subrogated Property Insurers - Probative And Empirical Inferences From Courts' Divided Subrogation And Indemnification Decision, Willy E. Rice

Faculty Articles

Each year, extreme weather, natural disasters and allegedly "grossly negligent" investor-owned utilities concurrently destroy property, persons and lives. In the wake, billions of dollars are lost. Given utilities' general immunity under the judicially created filed-rate or filed-tariff doctrine, residential and commercial owners are precluded from filing ordinary negligence actions against utilities. Thus, many injured consumers try to settle their property-loss claims with their insurers. Some property insurers satisfy the "make-whole" doctrine and cover all losses. Most insurers, however, refuse to settle any claim. Or, they partially compensate the insureds. Yet, an overwhelming majority of property insurers are increasingly filing subrogation …

The Mystery Of The Leavenworth Oaths, M H. Hoeflich, Stephen M. Sheppard

Faculty Articles

Lawyers have sworn an oath to be admitted to the Bar since the beginnings of the Anglo-American legal profession. The oath serves several extremely important purposes. First, it is the formal act that admits an individual into the Bar and confers upon the oath taker the right to perform the duties of an attorney in the jurisdiction in which the oath is given. Second, the oath admits the new attorney to the broader world of the legal profession and signifies that the new attorney has been judged by the oath giver as worthy of the right to practice law. Third, …

The Scholar: Twenty-Five Years Of Change, Catherine Casiano

Faculty Articles

Catherine Casiano, the Assistant Dean of Admissions at St. Mary's University School of Law, a former staff writer and editor for The Scholar, reflects on the journal's twenty-fifth anniversary and evolution.

Taking Corrigibility Seriously, Dora Klein

Faculty Articles

This article argues that the Supreme Court's creation of a category of "irreparably corrupt" juveniles is not only an epistemological mistake but also a tactical mistake which has undermined the Court's express desire that only in the "rarest" of cases will juveniles be sentenced to life in prison without the possibility of parole.

The Lawyer As Dream Enabler, Gerald S. Reamey

Faculty Articles

In law school and in law practice, the power of preparation is reinforced. Generations of law students have heard me extol the virtue of preparation above all others. While it is true, even the best preparation will never beat luck; luck is fickle and not subject to our control. On the other hand, we totally control the amount and quality of the preparation we put into any project. I discovered preparation is more important than good looks, nice clothes, a shiny leather briefcase, eloquence, experience, or even intelligence.

Originalism And The Meaning Of "Twenty Dollars", Michael L. Smith

Faculty Articles

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment's reference to "twenty dollars" means--both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal …

Idaho's Law Of Seduction, Michael L. Smith

Faculty Articles

Seduction is a historical cause of action that permitted women's fathers to bring suit on their daughters' behalf in sexual assault and rape cases. This tort emerged long ago when the law's refusal to recognize women's agency left this as the only means of recovering damages in these cases. As time went on, the tort evolved, and women were eventually permitted to bring lawsuits for seduction on their own behalf. Today, most states have abolished seduction, along with other torts permitting recovery for damages arising from intimate conduct. One could be easily forgiven for thinking that such an archaic tort …

Is, Ought, And The Limited Competence Of Experts, Adam J. Macleod

Faculty Articles

The moral innovators whom C. S. Lewis criticized in The Abolition of Man supposed that they could draw imperatives out of their superior understanding of sentiment and instinct. They assumed that to know what human beings want to do is to know what human beings should do. But people want to do all sorts of things that are irrational, pointless, harmful, and even downright evil. And people want inconsistent things. So the innovators are incoherent. As Lewis correctly affirmed, no amount of knowledge about nature or the world is sufficient by itself to direct us to do what is good …

Total Return Meltdown: The Case For Treating Total Return Swaps As Disguised Secured Transactions, Colin P. Marks

Faculty Articles

Archegos Capital Management, at its height, had $35 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world's largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland's biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan's Nomura lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG, which lost $5.5 billion. Archegos itself lost $20 billion over two days. The unique characteristics of total return swaps and …

The First Woman Dean Of A Texas Law School: Barbara Bader Aldave At St. Mary's University, Vincent R. Johnson

Faculty Articles

Long-time St. Mary's law professor Vincent Johnson details the arrival and tenure of Barbara Bader Aldave as Dean of St. Mary's University School of Law.

A Tribute To Gerald S. "Geary" Reamey, Michael Ariens

Faculty Articles

Geary Reamey began teaching at St. Mary's University School of Law in the Fall 1982 semester. He will have taught for forty-one years at St. Mary's when he retires in May 2023. Geary is known throughout Texas for his work, both as a speaker and as a writer, educating lawyers and judges about Texas criminal law and procedure. He is known among St. Mary's Law alumni for creating and operating, along with the late John Schmolesky, a vibrant criminal law and procedure curriculum, including the first-year Criminal Law course.

Ethical Lawyering: The Role Of Honor, Conscience, And Codes (Reviewing Michael S. Ariens, The Lawyer’S Conscience: A History Of American Lawyer Ethics), Vincent R. Johnson

Faculty Articles

Michael Ariens’ new book, The Lawyer’s Conscience: A History of American Lawyer Ethics, is a monumental work, rooted in his decades of excellent scholarship in the fields of attorney professional responsibility and legal history. The Lawyer’s Conscience captures the great sweep and key features of the roughly 250-year period in American legal ethics running from colonial times to the present day. Richly detailed and vividly presented, the story takes the reader on a grand tour of the landmark events and changing ideas that have defined the aspirations, responsibilities, and accountability of members of the American legal profession.

Originalism, Common Good Constitutionalism, And Transparency, Michael L. Smith

Faculty Articles

A theory of interpretation that is more transparent tends to be preferable to less transparent alternatives. Increased transparency tends to promote the values of constraint, democratic legitimacy, and an understanding of what the law is. Under a transparency rubric, originalism, as a standard of interpretation, performs better than common good constitutionalism. Originalism provides a better defined (though still imperfect) basis for determining the correctness of claims about what the Constitution means. Common good constitutionalism's reliance on morally and politically loaded terminology makes it elusive as a standard of interpretation which tends to match the desires of the interpreter. At the …

The Securities And Exchange Commission As Human Rights Enforcer?, Jena Martin, Rachel Chambers

Faculty Articles

On April 28, 2022, the Securities and Exchange Commission (SEC) announced that it had charged Brazilian mining company Vale with misleading investors about safety issues prior to a deadly dam collapse that killed hundreds and led to significant environmental harm in the Brazilian state of Minas Gerais. The action against Vale was largely seen as the agency's first significant move after it had created an Environmental, Social, and Governance (ESG) Task Force within the Division of Enforcement, the purpose of which is to identify and investigate ESG-related violations.

This action against Vale also emerged at a time when scholars, practitioners, …

Beyond Compulsory Licensing: Pfizer Shares Its Covid-19 Medicines With The Patent Pool, Chenglin Liu

Faculty Articles

On March 15, 2022, the United States, European Union, India, and South Africa reached an agreement on the waiver of intellectual property rights (IP rights) for COVID-19 vaccines. The waiver agreement has rekindled the debate on the balance between IP rights protection and equitable access to medicines during a public health crisis. India, South Africa, and other developing countries maintain that a waiver was the only way to make vaccines affordable and accessible. Leading pharmaceutical companies argue that the waiver will stifle innovation and make lifesaving medicines less accessible. Both sides have seemingly overlooked Pfizer's voluntary agreement with the Medicines …

Reconstruction Of The Reasonable Person Standard Under Chinese Patent Law, Weihong Yao, Robert H. Hu

Faculty Articles

The standard of a Reasonable Person is the common basis for determining the duty of care of a patent infringer. Under the Chinese patent law, the standards for Reasonable Manufacturer and Reasonable Importer are among the highest standards in the world; such high Chinese standards impose an excessive duty of care for Chinese manufacturing enterprises, importers, and distributors, which hinder the development of those enterprises. We should reconstruct the Chinese patent law's Reasonable Person standard based on the characteristics of the patent system and the status quo of China's economic production. A Reasonable Manufacturer should be defined as an ordinary …

The Appearance Of Appearances, Michael Ariens

Faculty Articles

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic.

During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was …

The Cost Of Unstable Property: Oil, Gas, And Other Confusing Mineral Interests, Chad J. Pomeroy

Faculty Articles

Most people think of property as a thing: a chunk of land or a piece of personal property. Most lawyers, hopefully, have a more sophisticated view and think of property as a set of rights that exists with respect to a thing and governs how one interacts with that thing vis-a-vis other people. But even that nuance is not refined enough for an oil and gas lawyer. Such a practitioner does, of course, view ownership as a set of rights, but the thing at hand is not just a piece of real property or the part of the land that …

Originalism's Implementation Problem, Michael L. Smith, Alexander S. Hiland

Faculty Articles

Originalism has received a great deal of recent, mainstream attention. President Donald Trump's nomination of three justices to the Supreme Court amplified discussions of their judicial philosophies during and following their confirmation proceedings. Supporters of these nominations highlighted the nominees' originalist credentials, arguing that originalism was the dominant approach to constitutional interpretation.

In the academic sphere, volumes of articles and books set forth originalist theories and methodology. Its academic proponents also refer to it as the dominant form of constitutional interpretation—often asserting that opponents of originalism have failed to enunciate a coherent alternative theory. Some argue that originalism (at least, …

The Fall Of An American Lawyer, Michael Ariens

Faculty Articles

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers’s property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall’s disbarment.

Randall had acted grievously in serving as Lovell Myers’s attorney. …

The Third Amendment In 2020, Michael L. Smith

Faculty Articles

Compared with other Amendments in the Bill of Rights, the Third Amendment does not get much attention. Its prohibition on the quartering of soldiers in houses during peacetime, along with its prohibition on similar quartering during times of war absent legal prescription, is rarely the subject of litigation or scholarship. Indeed, most people—and likely most attorneys—probably cannot tell you what the Third Amendment covers if put on the spot. This Article aims to fix this by giving the Third Amendment the respect that one of the Constitution's original amendments deserves. This Article surveys and analyzes caselaw, scholarship, and popular media …

"A Change Is Gonna Come:" Developing A Liability Framework For Social Media Algorithmic Amplification, Amy B. Cyphert, Jena Martin

Faculty Articles

From the moment social media companies like Facebook were created, they have been largely immune to suits for the actions they take with respect to user content. This is thanks to Section 230 of the Communications Decency Act, 47 U.S.C. § 230, which offers broad immunity to sites for content posted by users. But seemingly the only thing a deeply divided legislature can agree on is that Section 230 must be amended, and soon. Once that immunity is altered, either by Congress or the courts, these companies may be liable for the decisions and actions of their algorithmic recommendation systems, …

Reimagining Corporate Accountability: Moving Beyond Human Rights Due Diligence, Rachel Chambers, Jena Martin

Faculty Articles

The global movement towards the adoption of human rights due diligence laws is gaining momentum. Starting in France, moving to Germany, and now at the European Union level, lawmakers are heeding the call to mandate that companies conduct human rights due diligence throughout their global operations. The situation in the United States is very different: although ESG (environmental, social, and governance) has received increasing national attention, there is currently no law that mandates corporate human rights due diligence.

Recognizing this disparity and acknowledging the specific context for ESG-related issues in the United States, we consider how the United States could …

Blockchain Emergencies & Open-Source Software Governance: Is "Rough Consensus" A Suicide Pact?, Blockchain Emergencies & Open-Source Software Governance: Is "Rough Consensus" A Suicide Pact?, Angela Walch

Faculty Articles

I am concerned with, "How is Bitcoin run? Who gets to make decisions about Bitcoin? How is Ethereum run? Who gets to make decisions about Ethereum?" I am concerned with the governance of these protocols at the base level. Why does this matter? It matters because these protocols at the base are supporting the whole DeFi structure. All the complexities and different complex financial products that are being built there, they sit on top of these infrastructural base level protocols. I think we need to be aware of how these things work and the systemic risks that they can pose …