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Class Of 2007 Incoming Il Law Students, St. Mary's University School Of Law, St. Mary's University School Of Law

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Photographs of incoming law students for the St. Mary’s University School of Law, class of 2007

Declaring Open Season: The Outbreak Of Violence Against Undocumented Immigrants By Vigilante Ranchers In South Texas., Sara A. Martinez

The Scholar: St. Mary's Law Review on Race and Social Justice

Each year, over one million undocumented immigrants make their way across the U.S.-Mexican border in search of a better life. They are fleeing desperate situations like war, oppression, corruption, and starvation. Not only do undocumented immigrants making their way across the border have to fear dehydration and starvation, but they must also worry about death at the hands of Texas landowners. Texas ranchers often react with extreme measures in protecting their property. Ranch Rescue is an organization made up of volunteers who believe they should take measures into their own hands whenever there is a failure or refusal to act …

The House Always Wins: A Look At The Federal Government's Role In Indian Gaming & The Long Search For Autonomy., Christian C. Bedortha

The Scholar: St. Mary's Law Review on Race and Social Justice

States should not deny Native Americans the right to establish Class III gaming—casino games and slot machines—establishments. In 1988, Congress passed the Indian Gaming Regulatory Act (IGRA) which provided Indian tribes the exclusive right to control all forms of gambling on Indian land. IGRA, however, requires the Indian tribes and the state to negotiate the terms of a Class III gaming arrangement. If the state refuses, the matter goes to the Secretary of the Interior. The Secretary of the Interior, however, lacks the authority to require a state to allow the tribe to establish Class III gaming institutions. Therefore, without …

Capping Your Rights: The Texas Statute Of Non-Economic Damage Caps In Medical Malpractice Cases And Its Assault On The Rights Of The Injured And The Power Of The Courts., Ruben James Reyes

The Scholar: St. Mary's Law Review on Race and Social Justice

Though the Texas Legislature attempted to assure Texans’ access to quality, affordable health care, they assaulted patients’ rights and the power of the courts with a cap on non-economic damages in medical malpractice lawsuits. Non-economic damage caps have a major effect in medical malpractice cases on an injured victim’s constitutional rights and their rights to bring a cause of action against a negligent party. Injured medical malpractice victims may argue that non-economic damage caps directly violate equal protection because of the creation of an impermissible classification distinguishing between injured victims with calculable economic damages and injured victims with no economic …

Getting The Mentally Ill Misdemeanant Out Of Jail., James R. Walker

The Scholar: St. Mary's Law Review on Race and Social Justice

This Comment advocates for the release of jailed persons arrested for nonviolent crimes due to the symptomology associated with their mental illnesses. Mentally ill misdemeanants suffer from severe and persistent mental disorders, usually either a psychotic or mood disorder, without symptoms or a diagnosis of a personality disorder. Due to the increase in arrests of individuals with mental illnesses, jail and prison populations are drastically increasing. These institutions have turned into modern mental hospitals or asylums. Criminalization of the mentally ill occurs because increasing numbers of mentally ill persons who commit minor crimes are subject to more frequent arrests. The …

Lessons From La Morenita Del Tepeyac, Ana M. Novoa

Faculty Articles

The concept that the powerful and wealthy have the absolute obligation to offer political, financial, and social liberation to those at the margins of society should have special importance to those who are lawyers and professionals of color. People spend considerable time working through, working in, and centered in the dominant, or caucasian European culture. The legal system regularly fails to see, accept, realize, or believe when truth is presented at the margins. Nonetheless, it is at the margins that true legal and personal reform take place. Even in a friendly environment, where people are encouraged to step outside the …

Employment Law - Racial Discrimination - Circumstantial Evidence Of Racial Discrimination May Be Introduced To Raise A Genuine Issue Of Material Fact, Patricia W. Moore

Faculty Articles

In Hopson v. DaimlerChrysler, the United States Court of Appeals for the Sixth Circuit decided whether summary judgment was appropriate for the defendant on racial discrimination claims based on violations of Title VII, 42 United States Code § 2000e-2000e-17 and the Elliott-Larsen Civil Rights Act, Michigan Compiled Laws Annotated 37.2101.

For Any Reason Or No Reason At All: Reconciling Employment-At-Will With The Rights Of Texas Workers After Mission Petroleum Carriers Inc. V. Solomon., Jason P. Lemons

St. Mary's Law Journal

Since its inception, Texas has been a favored destination for both up-start entrepreneurs and established corporations. One of the less heralded, but nonetheless significant factors that makes Texas so attractive to businesses is its long-standing devotion to the doctrine of at-will employment. The doctrine generally states that any employment relationship not governed by contract or a statutory provision is terminable at any time by either the employer or the employee for any reason or no reason at all. At-will employment has been praised by courts and commentators for the flexibility it offers both parties in decision making. Nevertheless, the at-will …

Evidentiary Tactics: Selecting The “Best” Evidence To Simplify The Case, Edward J. Imwinkelried, David A. Schlueter

Faculty Articles

In the early 1990s, the American Bar Association Special Committee on Jury Comprehension released the results of surveys of jurors. These jurors had participated in complex federal and state cases. The researchers asked the jurors what complaints they had against the attorneys who had tried the cases. By a wide margin, the primary complaint was that the litigators went overboard and swamped the jury with information, particularly an excessive number of exhibits.

At trial, the attorney must exorcise the demons of complexity and confusion. There are strategies and tactics that should be employed to reduce cases to manageable portions that …

Secured Transactions History: The Impact Of Southern Staple Agriculture On The First Chattel Mortgage Acts In The Anglo-American World, George Lee Flint Jr, Marie Juliet Alfaro

Faculty Articles

The development of secured transaction law in colonial America was spurred by a litigious conflict between the recognizance and the chattel mortgage. The recognizance was the admission and recording of a debt before the court in order to secure credit. However, court hearings were infrequent in the colonies and often logistically impractical to the average farmer or merchant. The chattel mortgage was a more informal and practical solution to providing lines of credit on personal property. Without a system for recording chattel mortgages, lenders could not be sure in their investments.

In the southern colonies, the emergence of staple crops, …

The Charity Oversight Authority Of The Texas Attorney General., John W. Vinson

St. Mary's Law Journal

The Attorney General of Texas is the only elected official charged with regulating the state’s charitable interest. This duty and authority over charitable assets and entities are comprehensive and unique in themselves. Although the broader state representation role of American attorneys general has evolved considerably and been substantively codified in the statutory law, the area of charity regulations has remained remarkably true to its common law root. This Article will briefly examine the early roots of charity regulation and then discuss the authority and duties of the Attorney General of Texas in the modern context of charity regulation. In Texas, …

School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii

St. Mary's Law Journal

The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …

Decriminalizing Sexual Conduct: The Supreme Court Ruling In Lawrence V. Texas., Jessica A. Gonzalez

St. Mary's Law Journal

Throughout America, homosexual men and women have fought for the protection of their constitutional rights; gay men, lesbian women, and bisexual persons have petitioned the government for marital rights, adoption privileges, and recognition in the armed forces. While American culture has changed to include homosexuals in its daily life, the judicial branch has been hesitant in accepting gay culture within the legal system. While American courts remained reluctant to invalidate anti-sodomy statutes, Lawrence v. Texas pushed homosexual issues to the forefront. Gay activists demanded that the courts recognize homosexual individuals as persons deserving of constitutional protections. In doing so, Lawrence …

Aboilishing The Texas Jury Shuffle., Michael M. Gallgher

St. Mary's Law Journal

This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …

The Texas Courts' Adventures In Locating Texas Coastal Boundaries: Redrawing A Line In The Sand: Kenedy Memorial Foundation V. Dewhurst Defining An Exception To Luttes V. State., Thomas M. Murray

St. Mary's Law Journal

Kenedy Memorial Foundation v. Dewhurst determined the boundary of the Laguna Madre by narrowing the scope of the exception found in Luttes v. State. Luttes established the “mean high tide” test (MHHT), which governs lands controlled by civil law. The MHHT determines a boundary by the mean of the high tide without regard to a summer or winter tide. The exception, however, does not require the application of the MHHT in areas in which tidal gauges could not be used accurately. The Laguna Madre is a shallow strip of water, ranging between three and five miles in width, running between …

Legal Malpractice: When The Legal System Turns On The Lawyer Third Annual Symposium On Legal Malpractice & Professional Responsibility: Essay., Jennifer Knauth

St. Mary's Law Journal

What happens when a lawyer becomes a defendant in a legal malpractice case? Much has been written about the shortcomings of the adversary system as measured against its theoretical goals and assumptions. One significant assumption underlying the adversary system is that there is an equal playing field among litigants. The reality of a legal malpractice case is at odds with this ideal. The prevailing cultural bias against lawyers as gatekeepers and beneficiaries of the legal system permeates every aspect of a legal malpractice case. One effect of this cultural bias is the lawyer-defendant's very personal and disproportionate experience with the …

Hines 57: The Catchall Case To The Texas Kidnapping Statute., Karen Bartlett

St. Mary's Law Journal

This Recent Development asserts that the Texas Court of Criminal Appeals’ refusal to define “substantial interference” in relation to the kidnapping statute, opens the floodgates for every act of confinement or movement committed in the course of a substantive offense constituting kidnapping. The Court maintains it is up to the jury to define the term. If the Texas Legislature does not narrowly define the kidnapping statute, virtually every assault, robbery, sexual assault, and some murders will constitute both the substantive offense plus kidnapping. Furthermore, such logic would in effect bootstrap murder into capital murder, which happened in Herrin v. State. …

Predatory Paternity Establishment: A Critical Analysis Of The Acknowledgment Of Paternity Process In Texas., Anne Greenwood

St. Mary's Law Journal

Child support programs across the nation are struggling to achieve even meager recovery of the financial support children need from their parents. Obtaining child support payments from men who are not fathers and who unknowingly signed their rights away is not a sound long-term policy. States must ensure that children are supported and their custodial mothers receive assistance from non-custodial fathers. Logically, the law should only compel a man to support a child he fathered. If a man chooses to assume not only the financial obligation but also the relationship which belongs to the biological father; then such agreement must …

Stranded In The Wastelands Of Unregulated Roadway Police Powers: Can Reasonable Officers Ever Rescue Us., Keith S. Hampton

St. Mary's Law Journal

This Article describes the present state of roadway police power and explores the vulnerability of drivers and occupants to police abuse, specifically using pretextual stops. Today, state and federal courts have made many police power accommodations to the constitutional reasonableness requirement. Current Fourth Amendment jurisprudence justifies almost all conceivable police seizures of people in vehicles. If the police officer can point out any traffic law violation, he can arrest. And if he can arrest under those circumstances, then the already blurred line between detentions and arrest becomes inconsequential, constitutionally speaking. This Article proposes that the Texas Court of Criminal Appeals …

Family Violence Protective Orders In Texas And Appelate Review: Are They Meant For Each Other., Manuel C. Maltos

St. Mary's Law Journal

Historically, protective orders have been viewed as an effective civil legal recourse for those affected by family violence. Title Four of the Texas Family Code governs these protective orders and sets forth the requirements for obtaining such an order. With consistent improvements to Title Four, the legislature has responded to society's decreasing tolerance of family violence. As a result, now the Family Code mandates the issuance of a protective order as provided by Title Four, regardless of whether a divorce is pending. Further legislative efforts also lengthened the maximum duration of a protective order from one year to two years. …

United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders

St. Mary's Law Journal

Over the years Congress has enacted and amended several versions of the United States Code (U.S.C) § 925(c). Several reported cases illustrate the courts’ early efforts to develop a coherent body of jurisprudence with respect to the procedural and substantive aspects of U.S.C. § 925(c) judicial review. Specifically, the § 925(c) denials of relief by the Director before the congressional appropriations ban commenced in 1993. Although the methodology and reasoning behind these decisions differ in their details, several themes are discernable. First, even without the express provisions for judicial review added by the Firearms Owners Protection Act (FOPA), courts consistently …

Are Women More Ethical Lawyers – An Empirical Study, Patricia W. Moore, Kevin M. Simmons

Faculty Articles

We first noticed a possible "gender gap" in attorney discipline when we ran across the Oklahoma Disciplinary Commission's annual report for the year 2000. Women currently constitute 27% of Oklahoma attorneys, but 0% of the disciplined attorneys—none of the seventeen named—were women. Wondering whether the Oklahoma figures were aberrational, we attempted to locate research concerning gender and attorney discipline. But there have been few such studies, although “[p]robably no issue in the social sciences receives more attention than the difference between men and women.”

We thus embarked upon a national study of disciplinary actions decided in 2000. After collecting, coding, …

A Continuing Whimsical Search For The True Meaning Of The Term “Product” In Products Liability Litigation, Charles E. Cantú

Faculty Articles

More than a decade has elapsed since an initial attempt was made to discern the true meaning of the term product in products liability litigation. At the time, a brief history of events leading up to the adoption of Section 402A of the Restatement (Second) of Torts was outlined, and it was emphasized that what had at first seemed so simple subsequently proved to be somewhat complex.

An examination of cases involving the sales/service transaction, as well as those involving real estate, blood, electricity, component parts, water, computer software, and ideas, sometimes held that what was involved was a product. …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

The ease of becoming judgment proof in Texas, with liberal exemptions from execution of judgment, makes secondary liability very important. Texas statutes provide for four such liability theories: aiding and abetting, control person liability, third party actual awareness liability, and third party beneficiary liability. In addition to these four liability theories, federal law adds primary liability for some secondary parties.

The 78th Texas Legislature made two changes geared toward reducing the cost to the State of Texas in operating the State Securities Board. The Board also made several rule changes to increase revenues and to make other non-substantive changes. Moreover, …

The Seat Belt Defense In Texas., Brian T. Bagley

St. Mary's Law Journal

This Comment calls upon Texas courts to recognize the seat belt defense as a form of comparative responsibility. It has become standard procedure for Americans riding in motor vehicles to “buckle up.” Seat belt usage has risen since 1994, steadily increasing to seventy-five percent in 2002, with an increase of two percent in the last year alone. Many American jurisdictions, however, still refuse to allow evidence of seat belt use or nonuse to be considered in civil suits. Courts do not allow the failure to wear a safety belt in violation of the mandatory seat belt usage statute to be …