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Table Of Contents

Texas A&M Law Review

Table of Contents

The Honey Trap: How Pesticide Regulations Hold The Key To Honey Bee Survival

Texas A&M Journal of Property Law

No abstract provided.

Navigating The Winds Of Change: Licensing, Registration, And Regulatory Overlay For Wind Farms And Associated Transmission In Texas, Dennis W. Donley Jr., Stephanie S. Potter

Texas A&M Journal of Property Law

The State of Texas leads the United States in wind energy generation capacity—it has more than twice the wind generation capacity of the next-closest state, California. If Texas was an independent nation, it would rank sixth in the world in total installed wind capacity. Texas has a rich history of legislation and regulatory effort to thank for these statistics, which reflects the knowledge that energy and infrastructure drive the economy. Starting in 1999, Texas became one of the first states to enact a Renewable Portfolio Standard (“RPS”). The RPS set a state-wide goal for new renewable energy installation with deadlines …

The Floodplain Fiasco, Andrew J. Kubiak

Texas A&M Journal of Property Law

Flooding has long been a source of hardship for the people who work and live near bodies of water such as rivers, lakes, and streams. The United States has not been an exception. Only in recent decades has the United States taken proactive steps in an effort to mitigate the damage associated with flooding. These proactive measures predict the areas of the United States that flood, and require that people who live within those areas to purchase flood insurance. These predictions are in the form of a nationwide system of maps. Until recently, flood insurance was offered to affected property …

How To Remedy The Court's Unreasonable Expansion Of The Public Use Doctrine, Brian Walsh

Texas A&M Journal of Property Law

This Comment will deal with the evolution of the public use requirement in Part II. Part III deals with the unnecessary expansion of the definition of a public use. In Part IV I will argue why the courts should return to a public use definition in line with the intent of the Fifth Amendment as written by the founders.

Sins Of The Father, K.K. Duvivier

Texas A&M Journal of Property Law

This Article will first provide some general background about severance and the related doctrine of dominant–servient estates. Next, it will address oil and gas severance specifically. Third, it will track the parallels and distinctions between the history of wind severance and the oil and gas history set out in Section II. Finally, Section IV will address the problems with the current responses to wind severance.

Lessons Of Wind Policies In Texas, Joshua Linn, Clayton Munnings

Texas A&M Journal of Property Law

Since the late 1990s, Texas has experienced more wind generator investment than any other U.S. state. It now has the most installed wind capacity of any state, and wind power accounts for a larger share of total generation in Texas than in most other states. Favorable wind resources and the relative ease of siting large projects have contributed to Texas’s prominence in wind investment and generation. Numerous policies have also played important roles, such as the federal tax credit for wind generation, the state’s renewable portfolio standard (“RPS”), and a regulatory environment conducive to new investment in the electric power …

J.R.R. Tolkien Goes To Law School: Exploring Property Law Jurisprudence Through The Hobbit And Lord Of The Rings Trilogy, Colin P. Benton

Texas A&M Journal of Property Law

This Article offers J.R.R. Tolkien’s classic stories, The Hobbit and The Lord of the Rings Trilogy, as useful for Law and Literature scholarship because they have a large audience of all ages, who have either read them in books or seen them as movies. Their widespread popularity makes these stories an effective way to introduce and inspire many to the property law jurisprudence that permeates the texts. While Tolkien’s literature has not been traditionally utilized for Law and Literature purposes, there are several issues of property law jurisprudence that can be elucidated through Tolkien’s writings.

This Article begins by briefly …

Commercializing The Digital Canvas: Renewing Rights Of Attribution For Artists, Authors, And Performers, Jon M. Garon

Texas A&M Law Review

Over the past two decades, a series of trends in constitutional and intellectual property have significantly reshaped the impact of traditional intellectual property laws for the art community. Attribution of a work to the artist and protection of the integrity of a work from alternation are historical bedrocks of artistic protections, but those protections have been diminished for digital artists. The Visual Artists Rights Act excludes digital works from the definition of works of visual art, thus excluding these works from rights of attribution and integrity. 3 At the time, rights of attribution and integrity were seen as quasi-trademark rights, …

Immaculate Defamation: The Case Of The Alton Telegraph, Alan M. Weinberger

Texas A&M Law Review

At the confluence of three major rivers, Madison County, Illinois, was also the intersection of the nation’s struggle for a free press and the right of access to appellate review in the historic case of the Alton Telegraph. The newspaper, which helps perpetuate the memory of Elijah Lovejoy, the first martyr to the cause of a free press, found itself on the losing side of the largest judgment for defamation in U.S. history as a result of a story that was never published in the paper—a case of immaculate defamation. Because it could not afford to post an appeal bond …

Procedural Architecture Matters: Innovation Policy At The Federal Communications Commission, J. Brad Bernthal

Texas A&M Law Review

This Article examines the puzzle of whether today’s Federal Communications Commission (“FCC” or the “Agency”) is institutionally suited to craft telecommunications innovation policy and, if not, what changes are needed to better equip the Agency to respond to twenty-first century realities. Evaluation of FCC innovation policy performance is stubbornly difficult. Some criticize the FCC as a brake on innovation yet, under the FCC’s oversight, the United States’ communications industry has become an innovative engine propelling the overall economy more than ever before. It is difficult to untangle whether the FCC deserves credit for helping usher in today’s communications age, whether …

Text But Don’T Touch: Making (Non)Sense Of Texas Teacher-Student Relationships, Paul Elkins

Texas A&M Law Review

Young people, especially those enrolled in primary and secondary schools, are particularly susceptible to being taken advantage of by people they trust. Section 21.12 of the Texas Penal Code criminalizes improper relationships between educators and students in an effort to prevent the mental and physical harm that occurs when school employees use their classrooms as pools from which to choose potential sexual encounters. While few would argue that such a purpose is not well-intentioned, the law as it currently stands falls far short of criminalizing predatory behavior only where a position of authority has been abused. Rather, the Improper Relationship …

It’S Not So Obvious: How The Manifestly Evident Standard Affects Litigation Costs By Reducing The Need For Claim Construction, Samuel Reger

Texas A&M Law Review

Currently, the United States Supreme Court requires a fact-specific approach to determine whether a patent claim is eligible subject matter under 35 U.S.C. § 101, even though, traditionally, this has been considered a question of law. However, recently, the United States Court of Appeals for the Federal Circuit introduced the “manifestly evident” standard. The court held that when it is not manifestly evident that a claim is directed to a patent-ineligible abstract idea, then that claim must be deemed patent-eligible subject matter.

This Comment suggests that the manifestly evident standard, or one similar to it, will reduce litigation costs. This …

The Precarious Position Of Same-Sex Divorce In Texas, Shawna M. Young

Texas A&M Law Review

Currently, same-sex couples that are legally married in a jurisdiction that recognizes same-sex marriage may not be able to divorce if they move to Texas. Of the few cases tried in Texas, most courts refused to grant the samesex divorce because the courts refused to recognize the underlying marriage. Because these couples cannot simply return to the granting state due to most states’ divorce residency requirements, they cannot divorce and face untold issues due to this inability. While Texas does offer the opportunity for the couple to declare the marriage void, declaring the marriage void is not an adequate legal …

Of Phds, Pirates, And The Public: Three-Dimensional Printing Technology And The Arts, Lucas S. Osborn

Texas A&M Law Review

The confluence of three-dimensional printing, three-dimensional scanning, and the Internet will erode the dividing line between the physical and the digital worlds and will bring millions of laypeople into intimate contact with the full spectrum of intellectual property laws. One of the areas most affected by 3D printers will be three-dimensional art. This Article analyzes several ways in which 3D printing technology will affect the creation, delivery, and consumption of art. Not only does 3D printing offer great promise for creative works, but it also presents a problem of piracy that may accompany the digitization of three-dimensional works. As 3D …

Reconstructing The Contours Of The Copyright Originality And Idea- Expression Doctrines Regarding The Right To Deny Access To Works, Michael D. Murray

Texas A&M Law Review

Access to innovative scientific, literary, and artistic content has never been more important to the public than now, in the digital age. Thanks to the digital revolution carried out through such means as super-computational power at super-affordable prices, the Internet, broadband penetration, and contemporary computer science and technology, the global, national, and local public finds itself at the convergence of unprecedented scientific and cultural knowledge and content development, along with unprecedented means to distribute, communicate, and access that knowledge.

This Article joins the conversation on the Access-to-Knowledge, Access-to- Medicine, and Access-to-Art movements by asserting that the copyright restrictions affecting knowledge, …

A State Of Mind: Determining Bad Faith In Trespasses To Oil And Gas: A Call To Courts To Apply A True Subjective Analysis To Determine Whether A Trespasser To An Oil And Gas Estate Trespasses In Good Or Bad Faith, Brian J. Pulito, Nathaniel I. Holland, Jon C. Beckman

Texas A&M Law Review

It has always been the law of trespass mesne profits to an oil and gas estate that a trespasser is liable for the value of the oil and gas that it has produced from the estate to which it trespasses. That value is determined after ascertaining whether the trespasser held an honest belief that he or she had the right to produce oil or gas from the estate upon which it trespassed. In those cases, the trespasser is said to have trespassed in good faith. Conversely, the trespasser acts in bad faith when it knowingly produces oil and gas without …

The Ever-Protruding Stick In The Bundle: The Accommodation Of Groundwater Rights In Texas Oil And Gas, Andrew D. Lewis

Texas A&M Law Review

In Texas, water is on everyone’s minds. Between a raging drought, an expanding oil and gas industry, and a whirring media machine, Texans find themselves in great conflict on how to maintain a tradition and a booming industry while conserving the very resource that allows their presence in the first place: water. Water has become an important part of oil and gas exploration, and this fact has kept it well within the reach of those who lease the mineral interests. Texas law promotes such exploration by granting these lessees the rights to the reasonable use of the land’s subsurface water …

Prison, Money, And Drugs: The Federal Sentencing System Must Be More Critical In Balancing Priorities Before It Is Too Late, Whitley Zachary

Texas A&M Law Review

America is currently facing a major crisis with prison overcrowding and operating costs that exceed the annual budget. In the 1980s, the federal government began a “war on drugs” and Congress passed a number of drug statutes that carried mandatory minimum penalties for offenders. Since then, the federal prison population began to grow exponentially and has now reached a practically unsustainable level. The marginal changes made thus far are simply not enough to address the problem.

Since 1984, the federal sentencing system has struggled to efficiently and effectively balance mandatory minimum sentences with the sentencing guidelines. Mandatory minimum sentences should …

An Essay Inquiry: Will The Jobs Act’S Transformative Regulatory Regime For Equity Offerings Cost Investment Bankers’ Jobs?, Kurtis Urien, David Groshoff

Texas A&M Law Review

This jointly authored Article scaffolds our respective research interests that analyze laws, rules, regulations, and policy levers that may inhibit—or exploit— a market’s ability to recognize an asset’s intrinsic value, whether in terms of social, human, or financial capital.

In particular, this Article describes recent material changes to the Securities and Exchange Commission (SEC) rules promulgated in 2013 that Congress authorized by passing 2012’s JOBS Act. Contrary to statutory timing, the SEC has delayed the implementation of these new rules that impact the ability of small and entrepreneurial businesses to attract equity capital financing via Internet platforms. By applying the …

Contesting Disclaimer-Of-Reliance Clauses By Efficiency, Free Will, And Conscience: Staving Off Caveat Emptor, Shelby D. Green

Texas A&M Law Review

Mark Twain’s famous remark, “The report of my death was an exaggeration,” has become most apt in recent years as it pertains to the purported demise of the rule of caveat emptor in real estate transactions. An ancient maxim of law, caveat emptor puts a buyer on his guard to discover defects in things purchased, with no general duty by a seller to disclose defects of which he has knowledge. Despite the apparent abrogation of the concept by legislative and judicially-imposed- disclosure obligations, a new phenomenon has emerged that allows a seller of real property, or related real property services, …

Cariou V. Prince: Toward A Theory Of Aesthetic-Judicial Judgments, Sergio Munoz Sarmiento, Lauren Van Haaften-Schick

Texas A&M Law Review

In the winter of 2008, Richard Prince had a major exhibition of new and controversial paintings at Gagosian Gallery in New York titled Canal Zone. For the exhibition, Prince, an early member of the appropriationist art group known as The Pictures Generation, presented a body of artworks that incorporated reproductions of published photographs protected by the United States Copyright Act of 1976 The original published photographs were taken by the artist Patrick Cariou for his book, Yes Rasta, which consisted of a series of portraits of Rastafarians in Jamaica.

When The Author Owns The World: Copyright Issues Arising From Monetizing Fan Fiction, Steven D. Jamar, Christen B’Anca Glenn

Texas A&M Law Review

Fan fiction is amateur writing that imaginatively reinvents a work in pop culture while maintaining the identifiable aspects of the preexisting work. Fans of various books, films, and television series write their own versions of the stories and post them online in fan fiction communities. Fan fiction as practiced today is a way for fans to creatively express themselves and become integrated into the story and world they love. The stories range from highly derivative works, where relatively few plot points are changed, to entirely new plot lines using the same world and characters of the original, underlying work. Some …

Perpetual Finality: In Immigration Removal Proceedings, Motions To Reopen Create More Problems Than They Solve, Robert L. Koehl

Texas A&M Law Review

Immigrants who have been ordered removed may challenge their final removal order by filing a motion for the court to reopen their case. Motions to reopen removal cases are common within the immigration system, but offer little chance for an alien to actually receive relief. These motions are typically subject to strict time and numerical limitations. And the legal bases for reopening an immigrant’s case render the alien’s chances unlikely.

Current statute and case law provide seven grounds for an immigrant to reopen a case. These grounds stem from United States Code, the Code of Federal Regulations, and the Board …

Resoling International Shoe, Donald L. Doernberg

Texas A&M Law Review

Something has got to give. The Supreme Court has retreated from more than seven decades of personal jurisdiction analysis. After Goodyear Dunlop Tires Operations, S.A. v. Brown, the Court’s jurisprudence of general jurisdiction looked like an M.C. Escher print. If read fast enough, it appeared to make sense. Closer examination reveals an intellectual structure as impossible as anything that Escher could have drawn. Then the Court made it worse in Daimler AG v. Bauman. The Court seemingly has begun a project to rein in what it now regards as states’ unreasonable (and therefore unconstitutional) assertions of general jurisdiction over corporations. …

A Majestic Vacation: The Third Circuit Takes A Break From The Modern Trend Of Including Subchapter S Elections In The Property Of A Bankruptcy Estate, C. Chadwick Cullum

Texas A&M Law Review

Subchapter S elections provide small businesses and their owners with substantial tax benefits. These elections allow the businesses to avoid taxation at the corporate level and cause the tax liability of the company to pass through to the shareholders. When a Subchapter S entity enters bankruptcy, the company expects tax liability to continue to pass through to the shareholders, but the shareholders often want to shift the tax liability back onto the company because they do not have access to the company’s income while it is in bankruptcy. Whether Subchapter S elections are property of the company’s bankruptcy estate is …

Table Of Contents

Texas A&M Law Review

Table of Contents

2013–2014 Texas A&M Law Review Masthead

Texas A&M Law Review

2013–2014 Texas A&M Law Review Masthead

Automated Vehicles Are Probably Legal In The United States, Bryant Walker Smith

Texas A&M Law Review

This article provides the most comprehensive discussion to date of whether so-called automated, autonomous, self-driving, or driverless vehicles can be lawfully sold and used on public roads in the United States. The short answer is that the computer direction of a motor vehicle’s steering, braking, and accelerating without real-time human input is probably legal. The long answer, which follows, provides a foundation for tailoring regulations and understanding liability issues related to these vehicles.

The article’s largely descriptive analysis, which begins with the principle that everything is permitted unless prohibited, covers three key legal regimes: the 1949 Geneva Convention on Road …

The Theoretical And Practical Underpinnings Of Teaching Scholarly Legal Writing, Jessica Wherry Clark, Kristen E. Murray

Texas A&M Law Review

Scholarly writing has long been a part of the upper-level law school curriculum. Like children thrown into the deep end of the pool to see if they can swim, every year, thousands of upper-level law students are asked to write a scholarly paper to satisfy an upper-level writing requirement on a topic likely of little acquaintance to them. For many of these law students, the scholarly writing process is daunting1 given the unknown subject matter, the lack of structured feedback and guidance, and the inability to become engaged or inspired by the project because of the often-isolating experience of writing …