Law Commons^™

Anti-Discrimination Ethics Rules And The Legal Profession, Michael Ariens

Faculty Articles

“Reputation ought to be the perpetual subject of my Thoughts, and Aim of my Behaviour. How shall I gain a Reputation! How shall I Spread an Opinion of myself as a Lawyer of distinguished Genius, Learning, and Virtue.” So wrote twenty-four-year-old John Adams in his diary in 1759. He had been a licensed lawyer for just three years at that time and had already believed himself to be hounded by “Petty foggers” and “dirty Dablers in the Law”—unlicensed attorneys who, Adams claimed, fomented vexatious litigation for the fees they might earn.

Adams believed his embrace of virtue, along with genius …

One Step Backward: The Ninth Circuit's Unfortunate Rule 404(B) Decision In United States V. Lague, Dora Klein

Faculty Articles

The federal courts' current approach to character evidence is widely recognized as problematic. Although Rule 404(b)(1) categorically prohibits the use of character evidence, Rule 404(b)(2) presents a list of examples of permitted purposes that has tempted courts to view the admission of other-acts evidence as proper so long as the evidence is merely relevant to a non-character purpose. Additionally, courts have misconstrued the inclusive structure of Rule 404(b) as creating a presumption

in favor of admissibility. Recent efforts to correct this mistakenly permissive view include decisions by several of the federal circuit courts of appeals recognizing that Rule 404(b) requires …

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 …

Records About The School Of Law, St. Mary's University Archives

Finding Aids

The extant records of the Law School of Saint Mary’s University of San Antonio, Texas are assembled from the offices of the president, the vice president for academics, and other administrators. These records were generated by various administrators in pursuit of the educational objectives of the university. They include memos and letters between the law deans and the university administration, deliberations about educational policy, about faculty compensation, about tenure policies, and about curriculum. Also present are some records relating to law student associations, programs for in-service legal education (“law clinics”), and law school publications.

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, …

Distracted Walking, Michael L. Smith

Faculty Articles

Throughout the United States and across the world, cities are enacting bans on "distracted walking." These bans target cell phone users who cross the street while using a telephone. Doing so in certain cities may result in a fine, community service, or even jail. Drawing inspiration from municipalities, lawmakers in several states have proposed similar statewide legislation. Pushback against these measures is rare-as many people have either directly, or indirectly, experienced the slow and oblivious behavior of "smartphone zombies."

This Article surveys these laws and demonstrates that the science is, at best, mixed on whether device usage results in distraction …

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. …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

Class Of 2024 Incoming Il Law Students, St. Mary's University School Of Law, St. Mary's University School Of Law

Incoming 1L Photos (Facebooks)

Photographs of incoming law students for the St. Mary’s University School of Law, class of 2024

2021-2022 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

A Few Words For The Firing Squad (Editorial), Alexandra L. Klein, Brandon Hasbrouck

Faculty Articles

South Carolina’s governor has signed into law a bill adding the firing squad as one of the methods of execution that a person sentenced to death must choose between if lethal injection drugs are unavailable. This editorial discusses the inherent issues with the bill.

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 …

The Aoc In The Age Of Covid - Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

Faculty Articles

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

Police Use Of Force Laws In Texas, Gerald S. Reamey

Faculty Articles

At the heart of calls for police reform lie use of force laws. While policing agencies adopt and enforce their own policies regarding when and how force may be used by officers of those agencies, state laws rarely define the uniform limits under which officers operate. Policing in the United States is highly fractured; of the hundreds of law enforcement agencies operating, most are autonomous, and they determine the policies under which they operate, including those for use of force. They also decide whether and how to investigate violations of internal policies, as well as the punishment that will be …

The Proposed Rules On Advertising And Solicitation, Vincent R. Johnson

Faculty Articles

This article addresses the rule proposal appearing as ballot item E for the State Bar of Texas rules vote February 2 to March 4, 2021. The proposed rules dealing with lawyer advertising and solicitation seek to clarify, simplify, and modernize this area of the law, while nevertheless continuing to endorse principles and practices that have proved to be sound.

The Citation Of Unpublished Cases In The Wake Of Covid-19, Michael L. Smith

Faculty Articles

California's Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states' courts. This may result in problems, such as limiting courts' and parties' authorities to a skewed sample set, and the covert importation of inapplicable, stricter federal court pleading standards in state court cases. COVID-19 was a stress-test that brought the problems with California's citation rules into focus. The pandemic led to a flood of claims for pandemic-related business interruptions by insured business owners against their insurance companies. While state courts …

Lech's Mess With The Tenth Circuit: Why Governmental Entities Are Not Exempt From Paying Just Compensation When They Destroy Property Pursuant To Their Police Powers, Emilio R. Longoria

Faculty Articles

On June 29, 2020, the Supreme Court denied certiorari in Lech v. Jackson, a Tenth Circuit inverse condemnation case, which held that governmental entities are categorically exempt from paying just compensation when they destroy private property pursuant to their police powers. This denial of certiorari cements a highly controversial circuit court holding into our takings jurisprudence the effects of which will be serious and far reaching. This article dissects the Tenth Circuit's opinion in Lech and explains how and why this holding should be revisited. If it is not, we risk losing the protection that the Fifth Amendment's Just Compensation …

If You Don't Care, Who Will?, Chad J. Pomeroy

Faculty Articles

As a property law professor, I have lately found myself thinking a lot about privacy rights. Initially, the two topics (property and privacy) perhaps do not seem closely related, but I think they are—or, at least, I think the tie between the two is becoming much more pronounced and important, as modern life becomes ever more techno-centric. specifically, I think that privacy rights are, at this point, essentially an outgrowth of property rights. That is, one's right to privacy is dependent on what we traditionally view as one's property rights. At least, I think this is the current state of …

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims’ Rights: Is The Military Actually Safer Than Civilian Society?, David A. Schlueter, Lisa M. Schenck

Faculty Articles

No abstract provided.

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

Faculty Articles

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client's losses.

Shifting the focus of a legal malpractice action from …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

Congress, Don't Rush Regulating Crypto (Opinion), Angela Walch

Faculty Articles

A sprawling infrastructure bill is the wrong venue for regulating an industry as complex and systemically important as crypto.

Meaningless Guarantees: Comment On Mitchell E. Mccloy's “Blind Justice: Virginia's Jury Sentencing Scheme And Impermissible Burdens On A Defendant's Right To A Jury Trial", Alexandra L. Klein

Faculty Articles

Despite the important role that jurors play in the American criminal justice system, jurors are often deprived of critical information that might help them make sense of the law their oaths require them to follow. Such information with regard to sentencing might include the unavailability of parole, geriatric release, sentencing guidelines, or other information that is relevant to determining a defendant's penalty. Withholding information from juries, particularly in sentencing, risks unjust and inequitable sentences. Keeping jurors in the dark perpetuates injustices and undermines public confidence and trust in the justice system.

Mitch McCloy's excellent Note provides a compelling illustration of …

The World Health Organization: A Weak Defender Against Pandemics, Chenglin Liu

Faculty Articles

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO's delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Articles

The survey that follows highlights the most important developments of 2020 dealing with domestic and international sales of goods, personal property leases, payments letters of credit, documents of title, investment securities, and secured transactions.

When Is A Warranty Not A Warranty?: Deconstructing The Magnuson-Moss Warranty Act’S Narrow Definition Of “Warranty”, Colin P. Marks

Faculty Articles

Prior to the adoption of the Uniform Commercial Code (“UCC”), warranties of goods required reliance on the affirmation or promise relating to the goods for liability to attach. The UCC changed this standard from a reliance standard to a “basis of the bargain” standard. This shift has caused much confusion as to whether the new standard was meant to completely eliminate reliance as a relevant factor, or if reliance still plays a primary role in warranty analysis. Adding to this area of law is the Magnuson-Moss Warranty Act (“MMWA” or “the Act”), which was enacted to address concerns that sellers’ …

Abolishing The Communications Decency Act Might Sanitize "Political Biased," "Digitally Polluted," And "Dangerously Toxic" Social Media? - Judicial And Statistical Guidance From Federal-Preemption, Safe-Harbor And Rights-Preservation Decisions, Willy E. Rice

Faculty Articles

Sitting and former U.S. Presidents, as well as members of the general public, financial, political and educational institutions, use social media. Yet, an overwhelming majority of users, content creators, parents, "conservatives," "progressives," Democrats, and Republicans distrust social media owners. Some critics allege that owners "digitally pollute" platforms by encouraging users to post "corrosive, dangerous, toxic, and illegal content." Other critics assert that service providers' purportedly objective content moderation algorithms are biased-discriminating irrationally on the basis of users' political association, ideology, socioeconomic status, gender, and ethnicity. Republicans and Democrats have crafted roughly twenty bills on this matter. In theory, the enacted …

Model Rule 8.4(G) And The Profession's Core Values Problem, Michael Ariens

Faculty Articles

Model Rule 8.4(g) declares it misconduct for a lawyer to "engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law." The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A …