Law Commons^™

After The Storm: Understanding And Improving U.S. And Texas Disaster Recovery And Hazard Mitigation Policies, Augustus L. Campbell

Texas A&M Journal of Property Law

Even as the number and effects of major disasters have steadily in- creased, government has played an increasingly large and central role in the response and recovery efforts after major disasters. Hurricane Harvey alone caused approximately $125 billion in economic losses. The federal government allocated over $136 billion in assistance for 2017 major disasters. Without adaptation and mitigation measures, researchers project that annual economic losses from storm, flood, and subsidence damage in the world’s coastal cities will average over $1 trillion per year by 2050. Even with adaptation and mitigation, annual losses in 2050 are still likely to exceed $60 …

"Hurricane" Sandy: A Case Study Of The Eastern District Of New York's Effort To Address Mass Litigation Resulting From The Effects Of Climate Change, Cheryl L. Pollak, Ramon E. Reyes Jr., Robyn Weinstein

Texas A&M Journal of Property Law

On the evening of October 29, 2012, “Hurricane” Sandy made land- fall on the New York coastline, battering the land with strong winds, torrential rain, and record-breaking storm surges. Homes and commercial structures were destroyed; roads and tunnels were flooded; and more than 23,000 people sought refuge in temporary shelters, with many others facing weeks without power and electricity. At the time, Sandy was heralded as one of the costliest hurricanes in the his- tory of the United States; the second costliest hurricane only to Katrina, which hit New Orleans in 2005. Unfortunately, recent experience with Hurricanes Florence, Maria, Harvey, …

Alternative Options For Resolution Of Property And Casualty Claims Arising Out Of Natural Disasters, Kimberly Taylor

Texas A&M Journal of Property Law

At the time of this Article, at least twelve large wildfires are burn- ing in California across more than 1,000 square miles, having damaged or destroyed over 2,000 structures, according to the California Department of Forestry and Fire Protection (CAL FIRE). At least eight people have lost their lives. The Kilauea volcano continues to erupt in Hawaii, having destroyed 600 homes. The 2018 hurricane season is in full swing, and while there have been no catastrophic events to date, residents in Houston, Florida, Puerto Rico, and elsewhere are still recovering from the devastating winds and rains wrought by Har- vey, …

The Contract Dispute Act's Statute Of Limitations: The Failure To Deliver Procedural Predictability, Peter M. Casey

Texas A&M Journal of Property Law

The Contract Disputes Act of 1978 (“CDA”) governs disputes “relating to a contract” between federal executive agencies and contractors. It establishes the process for parties to seek administrative remedies for claims under covered contracts. It also limits the right to judicial review of agency decisions to specific “boards of contract appeals” (“BCA”) and the United States Court of Federal Claims (“COFC”). According to the CDA’s sponsors, Congress enacted the law to bring reliability and order to a hodgepodge of conflicting and inconsistent rules for adjudicating contract disputes used by the various executive agencies. The law aimed to simplify the process …

Cybersecurity, Encryption, And Defense Industry Compliance With United States Export Regulations, Rose Richerson Eichler

Texas A&M Journal of Property Law

Exports of technology and items containing technical information are regulated by the United States government. United States export control regulations exist to help protect national security, economic, and political interests. United States defense industry companies manufacture products and develop technologies and information that the United States has a particular interest in protecting. Therefore, defense industry companies must comply with United States export control regulations when exporting items and information to their international partners and customers. An “export” not only includes shipments of hardware or other tangible assets to foreign end-users but also includes the sharing of certain types of information …

The Cycles Of Defense Acquisition Reform And What Comes Next, Andrew Hunter

Texas A&M Journal of Property Law

Many aspects of war and national defense appear to run in cycles. Indeed, the identification and explanation of these cycles is a favorite pastime of military scholars. Historians and political scientists characterize war as alternating cycles of offensive and defensive dominance. The idea of cyclicality may in fact be hardwired into academic discussions and understandings of war. For example, early war theorist Carl von Clausewitz described an ever-changing character of war undergirded by war’s fundamentally unchanging nature. Because the dominant theoretical understanding of war is that it holds a mixture of both fixed and constantly evolving elements, our concept of …

A (Re)Adoption Story: What Is Driving Adoptive Parents To Rehome Their Children And What Can Texas Do About It, Emma Martin

Texas A&M Law Review

Ava was adopted from Africa when she was four years old. She became the baby sister to two older brothers and the daughter to two loving, experienced parents. A year or two after Ava moved to America, she and her “forever family” attended a Colorado summer camp. All was seemingly well until the camp staff and the other families at camp started to notice something strange about the way Ava’s parents treated her compared to her brothers. After an activity, the parents greeted the brothers with an excited “did you have fun?” or “what did you learn?,” while the parents …

Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley

Texas A&M Law Review

This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …

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Texas A&M Law Review

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Higher Education Savings And Planning: Tax And Nontax Considerations, F. Philip Manns Jr., Timothy M. Todd

Texas A&M Law Review

Funding higher education is among the critical financial decisions made by individuals and families. There are myriad options. Yet, the conventional wisdom—namely using Section 529 Plans—may not be the optimal vehicle to effectuate this goal. Therefore, this Article discusses various strategies to plan, save, and pay for higher education. It compares various savings methods including gifts, UTMA accounts, Section 529 Plans, trusts, and other vehicles. The analysis explores both tax and non-tax considerations, including the effect of different strategies on financial aid, transaction costs, investor control, income taxes, gift and estate taxes, flexibility, and creditor protection. This Article concludes that …

Standing In The Way Of Our Goals: How The Best Interest Of The Child (Whatever That Means) Is Never Reached In Texas Due To Lack Of Standing For Third-Party Parents, Jessica Nation Holtman

Texas A&M Law Review

Currently in Texas, standing options for third-party nonparents seeking to file suits affecting the parent-child relationship (“SAPCRs”) are extremely limited. And, even though the standing options are codified, the evidence necessary to meet the threshold elements may be drastically different depending on the case’s location. These third parties, who have previously exercised parental responsibilities, must make showings to the court that most divorced parents could not make; and this is just for a chance to bring a claim in court. While this seems unfair, and Texas should absolutely resolve the split among its appellate courts, there is one extremely important …

Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence Of Abortion Exceptionalism In Garza V. Hargan, Kaytlin L. Roholt

Texas A&M Law Review

Since a majority of Supreme Court justices created the abortion right in 1973, a troubling pattern has emerged: The Supreme Court has come to ignore—and even nullify—longstanding precedent and legal doctrines in the name of preserving and expanding the abortion right. And with a Supreme Court majority that is blithe to manipulate any doctrine or principle—no matter how deeply rooted in U.S. legal tradition—in the name of expansive abortion rights, it should come as no surprise that lower courts are following suit. Most recently, the D.C. Circuit fired up the “ad hoc nullification machine,” but this time, its victim of …

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not aimed at prohibiting bribes …

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

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Texas A&M Law Review

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Ethereum And The Sec: Why Most Distributed Autonomous Organizations Are Subject To The Registration Requirements Of The Securities Act Of 1933 And A Proposal For New Regulation, Tiffany L. Minks

Texas A&M Law Review

In a world full of new technology, the risk of fraud is constantly increasing. In the securities industry, this risk existed long before the use of technology. Congress enacted the Securities Act of 1933 to combat the risk of fraud and misrepresentation in the sale of securities. By requiring full disclosure, investors have the opportunity to make informed decisions prior to investing. However, Distributed Autonomous Organizations (“DAOs”), through the use of blockchains and smart-contracts, engage in the sale of securities without fully disclosing the risks or complying with the registration requirements of the Securities Act of 1933. Compliance with the …

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

Active Promotion Of Useful Arts: Considering The Government's Role In Patent Enforcement, Brian Harris

Texas A&M Law Review

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the decision to grant …

Disseisin, Doubt, And Debate: Adverse Possession Scholarship In The United States (1881-1986), John Lovett

Texas A&M Law Review

Property law scholars in the United States have discussed the doctrine of adverse possession for more than a century. Indeed, ever since American property law scholars began to write property law treatises, formalize property law courses in modern law schools, publish property specific articles in law reviews, and publish property law case books, adverse possession has served as a staple of property law discourse. This Article examines how property law scholars think about and discuss adverse possession. It explores how adverse possession talk has changed—and not changed—over time. In other words, this Article examines both the substance and rhetoric of …

The Foreign Corrupt Practices Act Turns 40: "Reflections On Walmart's Enhanced Ethics & Compliance Program", Jay T. Jorgensen

Texas A&M Law Review

As Walmart’s business has been changing, the company has also evolved and changed in our corporate governance. In 2012, the company started a significant effort to enhance our ethics and compliance programs. Prior to that time the company maintained separate compliance efforts in different countries. For example, Walmart’s business in the United States had a well-developed compliance program. The company had separate compliance-related activities and personnel in our businesses in Canada, China, Mexico, and elsewhere. All of these compliance programs operated independently of each other, reporting to their local business leaders.

Cracking Shells: The Panama Papers & Looking To The European Union's Anti-Money Laundering Directive As A Framework For Implementing A Multilateral Agreement To Combat The Harmful Effects Of Shell Companies, Nicholas Vail

Texas A&M Law Review

In early 2016, the International Consortium of Investigative Journalists released a report detailing thousands of leaked documents demonstrating how a Panamanian law firm had, for years, helped wealthy clients conceal their financial activities through the use of offshore shell companies. The Panama Papers, as the leaked documents came to be known, directed renewed attention at the use of shell companies. Shell companies are used by the world’s wealthy and powerful to lower their taxes, but are also used by tax evaders, criminal organizations, and terrorists. While much of the renewed attention has been directed at offshore tax havens such as …

Which Statute Will Trump: The Validity Of Class-Action Waivers In Employment Arbitration Agreements, Allen Al-Haj

Texas A&M Law Review

A law can often be a double-edged sword—its mandate or protection of one right will sometimes come at the cost of another. Compounding this problem of unintended consequences is that laws do not operate in a vacuum. Instead, laws interact with other laws, and if they conflict, courts must determine which will prevail. Determining the validity of class-action waivers in employment arbitration agreements will require reconciling the Federal Arbitration Act’s mandate that arbitration agreements be enforced according to their terms against the National Labor Relations Act’s protection of employees’ right to engage in concerted activities for the purpose of mutual …

The Revised Ncaa Division I Governance Structure After Three Years: A Scorecard, Brian D. Shannon

Texas A&M Law Review

As part of the August 2014 Division I Governance re-design, the NCAA Division I Board of Directors, acting on the recommendation of a Board-appointed Steering Committee, granted certain autonomous decision-making powers to the Autonomy 5 conferences and their sixty-five member institutions. In effect, this recommendation by the Board’s Steering Committee enabled the Autonomy 5 conferences to begin to adopt policy legislation independently from the rest of Division I. Accordingly, the Steering Committee developed and recommended a structure “designed to allow permissive use of resources or to otherwise enhance the well-being of student-athletes by any [Autonomy 5 institutional] member, [or] to …

Fulfilling U.S. Commitment To Refugee Resettlement: Protecting Refugees, Preserving National Security, & Building The U.S. Economy Through Refugee Admissions, Harvard Immigration And Refugee Clinical Program

Texas A&M Law Review

At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers …

Rainwater Harvesting In Colorado And The Quandary Of A Taking, Stephen N. Bretsen

Texas A&M Journal of Property Law

Although rainwater harvesting would appear to be a win-win solution to the problem of developing new sources of water, implementing rainwater harvesting in the American West has been fraught with tensions that have pitted rural farmers and other agricultural interests against urban and suburban homeowners. The water law of the western states is based on the prior appropriation doctrine, which creates a “first in time, first in right” system of water rights tied to when a user diverts surface water for beneficial use. Since water rights are property rights, state statutes and regulations that “go too far” in affecting them …

Happy Birthday Siri! Dialing In Legal Ethics For Artificial Intelligence, Smartphones, And Real Time Lawyers, Jan L. Jacobowitz

Texas A&M Journal of Property Law

This Article explores the history of AI and the advantages and potential dangers of using AI to assist with legal research, administrative functions, contract drafting, case evaluation, and litigation strategy. This Article also provides an overview of security vulnerabilities attorneys should be aware of and the precautions that they should employ when using their smartphones (in both their personal and professional lives) in order to adequately protect confidential information. Finally, this Article concludes that lawyers who fail to explore the ethical use of AI in their practices may find themselves at a professional disadvantage and in dire ethical straits.

The …

What If? Using Medicare Regulations To Control And Commercialize Rainwater Harvesting, C. Trey Scott

Texas A&M Journal of Property Law

This Article will examine how rainwater harvesting in Texas would look if applied to a structure for rainwater governance similar to the structure of Medicare governance. Section II addresses the reasons why rainwater harvesting must be considered a necessity. Next, Section III will provide an overview of the applicable Medicare regulations that will later be reappropriated and rewritten for rainwater harvesting. Section IV will apply the discussed Medicare structure to rainwater harvesting. Finally, Section V will provide a closing answer to what if we applied the Medicare structure to rainwater harvesting.

Ethics Of Using Artificial Intelligence To Augment Drafting Legal Documents, David Hricik, Asya-Lorrene S. Morgan, Kyle H. Williams

Texas A&M Journal of Property Law

This article focuses on the second step in the due diligence process. While it addresses the question of competency, it focuses more on the further steps a lawyer must take to ensure that the use of the service as part of the representation of a client is consistent with the lawyer’s other ethical obligations. While it is important to emphasize that competency requires that the lawyer must be able to assess whether the work product is comparable to what a human would produce, competency is of course a fact-depending inquiry: whether a will is competently drafted turns on the standard …

New Water For Water Dispute Resolution, Rhett B. Larson

Texas A&M Journal of Property Law

Water scarcity often leads to water disputes. New water supplies—such as bulk water imports, desalination, cloud seeding, or increased stream flows from improved forest management—can mitigate water scarcity and thus help avoid water disputes. However, new water supplies can also aggravate water disputes if not developed in concert with legal reforms. This Article evaluates the role of new water in two cases of water disputes in arid regions and proposes legal reforms to promote new water as a means of water dispute resolution. The first case is the adjudication of water rights in the Gila River basin in Arizona. Improved …

Old Water Becoming New Again: Reuse Of Treated Wastewater Effluent In Texas, Howard S. Slobodin, Hope C. Shelton

Texas A&M Journal of Property Law

The reuse of treated wastewater effluent for municipal supply is not a new idea in Texas, having been contemplated for at least sixty years. However, its importance has grown in recent decades as traditional surface water sources have become fully subscribed. Reuse is recognized as a significant source of future supply for Texas in the 2017 Texas State Water Plan.1 The law related to reuse is, however, still very much a developing subject. Recent administrative actions and judicial decisions have better defined the contours of the entitlements necessary to reuse effluent discharged to state-owned water courses.2 In the midst of …