Law Commons^™

Conflict Of Laws (1988), Sharon N. Freytag, Don D. Bush, James Paul George

Faculty Scholarship

Conflicts of law occur when foreign elements appear in a lawsuit. Nonresident litigants, incidents in sister states or foreign countries, and lawsuits from other jurisdictions represent foreign elements that may create problems in judicial jurisdiction, choice of law, or recognition of foreign judgments, respectively. This Article reviews Texas conflicts of law during the Survey period from late 1986 through 1987. The survey includes cases from Texas state and federal courts and non-Texas cases affecting Texas practice. Excluded are cases involving federal/state conflicts, criminal law, intrastate matters such as subject matter jurisdiction and venue, except when they relate to the personal …

Drug Product Liability And Health Care Delivery Systems, William M. Sage

Faculty Scholarship

This note will use the principles of law and economics to examine the interaction of market structures and product liability rules in a world of imperfect information. The goals of the analysis are to create incentives for optimal care by producers and consumers, induce the socially appropriate amount of consumption of each product (often referred to as the "activity level"), and minimize the costs of bearing the risk of injury. The note will conclude that the existence of health maintenance organizations ("HMOs") and similar prepaid providers with superior information capacity and total patient care responsibility may create a context in …

Confederate And Carpetbaggers: The Precedential Value Of Decisions From The Civil War And Reconstruction Era, Jim Paulsen, James Hambleton

Faculty Scholarship

Many Texas attorneys consulting older decisions for guidance breathe sighs of mental relief when they read a Texas Supreme Court case, rather than one of those pesky Court of Appeals or Commission of Appeals decisions with an arcane writ history or "judgment adopted" designation. After all, Texas Supreme Court cases are the top of the heap, precedent-wise, unless they have been overruled. Right? Well, maybe. In Texas, there are good and bad vintages for Texas Supreme Court opinions. The Civil War and Reconstruction years, from 1861 through 1873, are a particularly interesting legal vinyard.

Surprisingly enough, despite the century or …

Determining Limitation Periods For Actions Arising Under Federal Statutes, Neil Sobol

Faculty Scholarship

Time limitations for cause of action are an integral part of the American system of law. These limitations define time periods following the accrual of the right of action in which a litigant must assert his claim. If the litigant fails to commence his suit within the specified time period, the court will generally deny relief. Given that failure to commence a suit before the limitation period has expired may deny an injured party relief and allow a wrongdoer to escape without providing such relief, litigants must be able to determine the limitation periods that will apply to their particular …

Conflict Of Law (1987), James Paul George, Fred C. Pedersen

Faculty Scholarship

Conflicts of law occur when foreign elements appear in a lawsuit. Nonresident litigants, incidents in sister states or foreign countries, and lawsuits from other jurisdictions are all foreign elements that may create problems in judicial jurisdiction, choice of law, or the recognition of foreign judgments. This Article reviews Texas conflict of laws during the Survey period from late 1985 through 1986. The Survey includes cases from Texas state and federal courts, and non-Texas cases affecting Texas practice. Excluded are cases involving federal/state conflicts, criminal law, intrastate matters such as subject matter jurisdiction and venue, and conflicts in time, such as …

Better Late Than Never: Publication Of The Decisions From The 1845 Term Of The Republic Of Texas Supreme Court, James Hambleton, David A. Greenblatt

Faculty Scholarship

Two years ago, this column featured the rediscovery of a full year's worth of decisions issued by the Supreme Court of the Republic of Texas that had never been printed. Paulsen & Hambleton, Whatever Happened to 7845? The Missing Decisions of the Texas Supreme Court, 48 Tex. B.J. 830 (1985). Those decisions now have been collected and will appear in the December 1986 issue of the Texas Law Review (The Missing Cases of the Republic, 65 Texas L. Rev. 377 (1986)). Although none of the missing cases are likely to have any direct bearing on the outcome of the Texaco-Pennzoil …

Texas Session Laws: Same Chapter, Different Verse, James Hambleton, Jim Paulsen

Faculty Scholarship

An inconsistency in the publication of Texas session laws, beginning with the tag-end of the 68th Legislature, promises to create considerable confusion in finding and citing session laws. The problem stems from the fact that one publisher produced the paper pamphlet "advance sheets" for new laws, while another released the bound volumes of the same session laws. As one might expect, page numbers do not coincide.

Choice Of Law Outline For Texas Courts, James P. George

Faculty Scholarship

Several recent Texas choice of law cases have misapplied the most-significant-relationship test, the basic Texas choice of law test adopted from the Restatement (Second) of Conflict of Laws. The misapplications (none from the Texas Supreme Court) predominantly turn on the courts' improperly focusing on a single element of the seven-factor most-significant-relationship test, thereby thwarting its function as a balancing test for competing interests. Texas courts are not alone in this misunderstanding of choice of law tests. In recent years most states have moved away from the old rigid choice of law rules--easily applied, but often unfair--to the newer rules based …

Conflict Of Laws (1986), James Paul George, Fred C. Pedersen

Faculty Scholarship

Conflicts of law occur when foreign elements appear in a lawsuit. Nonresident plaintiffs or defendants, incidents in other state or countries, and lawsuits outside of Texas are all foreign elements that may create conflicts problems with judicial jurisdiction, choice of law, or the recognition and enforcement of foreign judgments. This Article will review Texas conflicts of law during the Survey period from late 1984 through 1985. The Survey includes cases from Texas state and federal courts, and non-Texas cases affecting Texas practice.

During the Survey period, judicial jurisdiction continued its uncertain theoretical expansion, with Texas courts raising important questions. Foreign …

Constitutionalizing The Codes, James Hambleton, Jim Paulsen

Faculty Scholarship

The Texas Legislative Council has been proposing, and the Texas Legislature has been routinely approving, codes since 1967. Just last year, in fact, this program to codify all the statutory law of Texas passed the halfway mark, with adoption of the Election Code, the Government Code, and the Civil Practice and Remedies Code.

The legislation implementing each of these codes contains an identical proclamation: "This Act is enacted pursuant to Article III, Section 43, of the Texas Constitution." Oddly enough, though, the 69th Legislature not only passed these codes; it passed a joint resolution calling for a change in the …

The "Official" Texas Court Reports: The Rest Of The Story, James Hambleton, Jim Paulsen

Faculty Scholarship

In the January 1986 issue of the Texas Bar Journal, this column recounted the checkered tale of the official Texas court reports, from the birth of the Texas Reports in the first State Legislature, to their mysterious death at the hands of the Legislature in 1963, and their equally mysterious resurrection by the most recent session, in the form of the Texas Government Code. The authors have since been deluged with reader mail on the subject, and have decided to share excerpts from both letters.

The Official Texas Court Reports: Birth, Death And Resurrection, Jim Paulsen, James Hambleton

Faculty Scholarship

Texas, like a number of other states, has ceased publication of its "official" reporters- -Texas Reports on the civil side and Texas Criminal Reports for criminal cases. What, then, is the "official" version of a Texas Supreme Court or Court of Criminal Appeals decision today? The Southwestern Reporter? Southwestern Reporter: Texas Cases? The Texas Supreme Court Journal? Perhaps the original signed typescript on record in the court clerk's office?

The answer, as the reader may have guessed, is "none of the above." But, as we shall see, a current "official" source for court opinions is, in …

An Unconstitutional Fiction: The Felony-Murder Rule As Applied To The Supply Of Drugs, Lynne H. Rambo

Faculty Scholarship

James Wong and Kent Louie were looking for a good time in Chinatown, and around nine o'clock they got lucky. Two young women agreed to join them. The women, however, wanted some heroin first, so they gave their new companions money and asked them to purchase the drug. After the men obliged, both women injected themselves, and everyone proceeded to a hotel. The next morning, only one of the women woke up. James and Kent, it turned out, had really not been lucky at all; both were tried, convicted and sentenced for felony-murder.

Although the men probably did not know …

New Rules: A Pocket Introduction, James Hambleton, Jim Paulsen

Faculty Scholarship

All in all, though, the new Rules of Appellate Procedure, effective Sept. 1, 1986, should be welcomed by bench and bar alike. The cooperation of this state's two high courts has produced a coordinated system of rules that should reduce confusion among attorneys and court personnel. In the process, the rules formerly applicable only to civil appeals have been reorganized, and are now presented in a format that more logically follows the flow of an appeal.

A Modified Approach To Article 9 Deficiencies In Missouri, William H. Henning

Faculty Scholarship

Unlike real property foreclosures, which are the subject of detailed statutory regulation, Part 5 of Article 9 establishes a free-wheeling system for personal property foreclosures which gives significant latitude to secured creditors. The secured party can "sell, lease or otherwise dispose of any or all of the collateral" so long as proper notice is given and "every aspect of the disposition including the method, manner, time, place and terms. . . [is] . . . commercially reasonable." If the disposition creates a surplus, it must be turned over to the debtor; if part of the debt remains unpaid, the secured …

Avoidance Of Completed Real Estate Foreclosures In Bankruptcy, William H. Henning, Grant S. Nelson

Faculty Scholarship

The Eighth Circuit has ruled that in certain situations noncollusive real estate foreclosures can be set aside as fraudulent conveyances. This theory has generated considerable debate, but even if it is reversed legislatively trustees may be able to obtain comparable results under a preference theory.

A New Service On The Texas Legal Horizon: Texas Supreme Court Index, James Hambleton, Jim Paulsen

Faculty Scholarship

Since the late 1950's the Texas Supreme Court Journal has been a mainstay of Texas lawyers, offering speedy copies of all supreme court opinions as well as writ dispositions. Though the Texas Supreme Court Journal is invaluable, it does have one major deficiency. Marian Boner's Reference Guide to Texas Law and Legal History puts the problem succinctly: "There is no cumulation, and the cases are not indexed."

A new publication, Texas Supreme Court Index+, is now making a creditable bid to fill that gap. A weekly service originating in Houston, the Index+ contains up-to-date data on the …

Whatever Happened To 1845 - The Missing Decisions Of The Texas Supreme Court, Jim Paulsen, James Hambleton

Faculty Scholarship

Have you ever noticed a gap in the publication of Texas Supreme Court decisions? Both the Harvard "Blue Book" and the University of Texas "Green Book" inform readers that opinions of the court from 1840 to 1844 (the Republic period) can be found in Dallam's Decisions, while decisions from 1846 on (statehood) are available in Texas Reports or the Southwestern Reporter. That's all very clear, but whatever happened to 1845? This article will supply half an answer to this question; perhaps some reader can provide the other half.

Three questions arise. The first, and simplest: Are there any …

Writ Writing Revisited: The Auto-Cite Approach, James Hambleton, Jim Paulsen

Faculty Scholarship

The November 1984 issue of the Texas Bar Journal contains an article discussing Texas writs of error and writ history ("Does West Write the Right Writs?"). The article examines the two most commonly used sources for Texas writ history: the West Writs of Error and Discretionary Review Tables, and Shepard's Texas Citations. The conclusion was that both contain a number of significant error and omissions.

Actually, there is a third and generally more accurate source for recent Texas writ history. Marketed by Lawyers' Cooperative, the same folks who publish A.L.R. and the Lawyer's Edition of the U.S. Reports, …

Defining Filartiga: Characterizing International Torture Claims In United States Courts, James Paul George

Faculty Scholarship

Since the Nuremburg trials and the attendant worldwide reaction to Nazi attrocities, the world has taken an increasing interest in preventing government torture. Whenever legal fictions such as national borders and other sovereignty concepts have acted as barriers to torture prevention, the world has responded, slowly and incrementally, with new legal fictions to overcome those barriers. A recent case in a United States federal court, Filartiga v. Pena-Irala, is a significant new increment toward the prevention of torture and more generally the international protection of human rights. Filartiga holds that torture, long prohibited by virtually all nations' laws and …

An Analysis Of Durrett And Its Impact On Real And Personal Property Foreclosures: Some Proposed Modifications, William H. Henning

Faculty Scholarship

Section 548(a)(2) of the Bankruptcy Code empowers a bankruptcy trustee to avoid fraudulent transfers of the debtor's assets if the debtor was insolvent at the time of the transfer. Since 1980, a number of federal courts have allowed trustees in bankruptcy to avoid properly conducted foreclosure sales of a debtor's pledged collateral when the collateral was sold for less than seventy percent of its fair market value. These courts have based their decisions on the theory that the transfers involved in these sales are fraudulent conveyances. This theory has been the subject of vigorous opposition from mortgage holders and other …

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.