Law Commons^™

A Statutory Sentencing Alternative For Alcohol Related Crimes, Gerald S. Reamey

Faculty Articles

Drinking problems spawn a wide variety of offenses, and the exposure to arrest and conviction abates only when the source of the problem is eliminated. The Texas Legislature introduced one option to avoid future convictions by passing Article 5561c, which created the Texas Commission on Alcoholism. Section 12 of the original Article enables judges in misdemeanor cases to remand a defendant to a treatment facility in lieu of imposition of sentencing. There were numerous factors that conspired to prevent the widespread use of Section 12 by defense counsels, including the availability of treatment facilities and cost of treatment. In 1977, …

Legal Remedial Alternatives For Spouse Abuse In Texas, Gerald S. Reamey

Faculty Articles

There are numerous civil and criminal legal alternatives available in Texas for dealing with abuse between adult cohabitants. Current and proposed systems may protect victims more effectively and deter abusers, and empirical studies can reveal the direction legal systems should take to pinpoint the flaws and shortcomings in present legal responses to abuse.

The difficulty of assessing the extent of spousal abuse increases the difficulty of finding an effective legal remedy. Abuse, like rape, is far less likely to be reported than other crimes. In addition, spousal abuse is hard to define in any meaningful statistical manner because of the …

Constitutional Law—Presidential Immunity—The President Is Absolutely Immune From Civil Damages Liability For Acts Done Within The “Outer Perimeter” Of His Official Capacity (Casenote), Laura H. Burney

Faculty Articles

The Supreme Court theorized absolute immunity for the President must be found in the separation of powers doctrine. Because of the broad range and sensitive nature of the President's responsibilities, his constant visibility, and the judicial deference he has historically been accorded, the Court concluded in Nixon v. Fitzgerald that civil damages suits would unduly distract the President from his official duties. Furthermore, because the President's actions can affect innumerable people, the Court feared the scrutiny inherent in civil damages suits would be overly intrusive. Accordingly, the Court considered it too difficult to align a particular result with one of …

Court-Martial Jurisdiction: An Expansion Of The Least Possible Power, David A. Schlueter

Faculty Articles

This article examines the statutory and judicial developments that have apparently expanded military jurisdiction. Serving as the core for this discussion is the amendment to Article 2, UCMJ, and the Court of Military Appeals’ decision in United States v. Trottier, 9 M.J. 337 (C.M.A. 1980), dealing with subject matter jurisdiction of courts-martial over drug-related offenses by service members.

County Court Of Ulster County V. Allen And Sandstorm V. Montana: The Supreme Court Lends An Ear But Turns Its Face, John M. Schmolesky

Faculty Articles

Because criminal verdicts provide no clue as to how the jury reached its decision, jury instructions are crucial indicators of how a deductive device operates. Deductive devices are mechanisms that allow or require the fact-finder to assume the existence of a fact when proof of other facts are shown. Any deductive device, whether permissive or mandatory, has pernicious possibilities that imperil the rationality of fact-finding. The controlling method of review for deductive devices in criminal cases simply require a rational connection between the basic fact and the presumed fact. However, the Supreme Court in Allen broke new ground in exempting …

Federal Economic Regulation Through Wage And Price Control Programs: 1917–1980 A Selected Bibliography, Bernard D. Reams Jr.

Faculty Articles

A significant portion of the law of the United States is currently embodied in, formed by, or effectuated through the rules, regulations, programs, and policies of governmental agencies. Early legal decisions on economic stability issues were made by administrative bureaus, boards and commissions, and many were rarely reviewed by courts, reported in newspapers or examined by scholars. Most administrators’ decision were made informally, undramatically, in the deep recesses of their bureaus. Many of their records rested unrecognized and poorly indexed in official government documents or in the National Archives.

For researchers attempting to bring together the materials involved in legislating …

1980-1981 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

Bodily Evidence And Rule 312, M.R.E., David A. Schlueter

Faculty Articles

n addressing the issues of obtaining bodily evidence, such as bodily fluids, from a suspect, Rule 312 of the Military Rules of Evidence must be considered in conjunction with the issues of self-incrimination, due process, and the Fourth Amendment. The Rule describes the procedures for collection of bodily evidence of service members. For example, a service member may not invoke the right against self-incrimination for external bodily evidence, but may when bodily fluids or cavity searches are requested. Any nonconsensual search may be conducted if it is both reasonable and performed under one of the authorized procedures of Rule 312. …

The Court-Martial: A Historical Survey, David A. Schlueter

Faculty Articles

In this article, Captain (P) Schlueter describes the development of the legal tribunal known as the court-martial. Beginning with the use of this form of trial in the armies of imperial Rome two thousand years ago, the author traces its evolution through the Middle Ages, to Britain from the Renaissance to the American Revolution. The focus then shifts to the United States, and the focus then shifts to the present day.

Tempia, Turner, Mcomber And The Military Rules Of Evidence: A Right To Counsel Trio With The New Look, David A. Schlueter

Faculty Articles

The potential for litigating right to counsel issues is ripe, and the new Military Rules of Evidence and recent case law ensure ample opportunity for litigation. Several significant developments in the law of military interrogations warrant an examination of a military suspect’s right to counsel. A series of Court of Military Appeals decisions have either clarified or expanded military case law on military interrogations. The pending new Military Rules of Evidence will implement a large amount of military case law, in some instances alter existing law, and more closely align military interrogation practices with prevailing civilian rules. Counsel should focus …

Pos-Graduacao Em Direito: Questoes Correlatas (Post-Graduation In Law: Related Questions), Roberto Rosas

Faculty Articles

No abstract provided.

Tutela Processual Do Menor (Procedural Guardianship Of The Minor), Roberto Rosas

Faculty Articles

SUMMARY: I. ACTIVE AND PASSIVE CAPACITY OF THE SMALLEST. II. DEFENSE OF THE SMALLEST. III. THE INTEGRATION OF THE MINOR IN THE SOCIETY: ADOPTION AND LEGITIMATION OF ADOPTION.

Personal Jurisdiction Under Article 2, Ucmj Whither Russo, Catlow, And Brown?, David A. Schlueter

Faculty Articles

The question of personal jurisdiction for military courts in cases of invalid enlistment creates several legal issues. Invalid enlistment cases exist in a legal gray area due to the uncertainty of whether the cases should be tried by civilian or military courts. The age and competence of the enlistee are material to determining jurisdiction. The conduct of the recruiter directly affects whether the enlistee was competent. Congress amended Article 2 of the Uniform Code of Military Justice in order to address these problems. The amendment resolves many of the lingering jurisdictional issues created by Russo and Brown, but fails to …

Wagner, Valadez And Harrison: A Definitive Enlistment Trilogy, David A. Schlueter

Faculty Articles

One area where enlistment law has received keen scrutiny is the subject of enlistment contracts vis a vis the question of personal jurisdiction. The Court of Military Appeals’s decision in United States v. Wagner served as the keystone for the Valadez and Harrison decisions. The Court in Wagner established the concept of constructive enlistment, which it subsequently relied on in Valadez and Harrison.

In Wagner, the court addressed whether a regulatory disqualification in and of itself voids the original enlistment contract for purposes of court-martial jurisdiction. The Court stated the regulation in question was not sufficient to void Wagner’s enlistment …

1978-1979 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

Introduction, Bernard D. Reams Jr.

Faculty Articles

Volume Two of Immigration and Nationality Law Review continues to represent a centralized annual forum for the paramount articles concerning American immigration laws. In addition to the law review articles selected by the editor for inclusion in this second volume, two original essays by practitioners in immigration law are featured. Mark Mancini examines excludability for lack of a valid labor certification as a species of fraud, and Dan P. Danilov reviews and discusses recent changes regarding nonimmigrant and immigrant visas for workers, businessmen, managers and investors. The Review’s goal remains that of providing the practicing lawyer and legal researcher with …

1977-1978 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

The Enlistment Contract: A Uniform Approach, David A. Schlueter

Faculty Articles

The author explores the history of various jurisdictional and administrative issues that arise under consideration of a service member’s enlistment contract. He proposes a change to the Uniform Code of Military Justice to codify the constructive enlistment doctrine for establishing personal court-martial jurisdiction over service members whose enlistment contracts and entry onto active duty were facilitated by recruiter misconduct. The proposal later became part of amendment to Art. 2, U.C.M.J..

Constructive Enlistments: Alive And Well, David A. Schlueter

Faculty Articles

Despite the predicted demise of the doctrine of constructive enlistments, recent case law from the Courts of Military Appeals has extended its existence. The constructive enlistment is recognized as a means of changing one’s status from civilian to servicemember where some deficiencies exist in the formal enlistment process.

In a trio of cases, United States v. Brown, United States v. Catlow, and United States v. Russo, the Court of Military Appeals laid a firm foundation for estopping the government from relying upon constructive enlistments in order to establish in personam court-martial jurisdiction. This trio of cases raised more questions than …

1976-1977 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

Introduction, Bernard D. Reams Jr.

Faculty Articles

The law of immigration and nationality is becoming an increasingly important topic in legal literature. This introductory volume of Immigration and Nationality Law Review represents an attempt to provide a centralized annual forum for the leading articles in this area of American law. Normally, leading legal periodical articles on the subjects of immigration, nationality, and alienage, are spread throughout various law journals. At best, materials germane to this subject have occasionally appeared in special law review issues or symposium volumes published by various American law schools. However, considering the growing relevance and concerns of immigration and nationality in the United …

Charter Air Travel: Paper Airplanes In A Dogfight (Comment), Gerald S. Reamey

Faculty Articles

Air transportation has traditionally been considered the most expensive form of travel. In that price context, the charter is an anomaly. Supplemental air carriers have built multi-million dollar businesses exclusively from the charter trade, and millions of passengers have flown by charter.

An anomaly, however, is inherently suspect and becomes proportionally more suspect as it infringes upon the status quo. Resolution of questions concerning the viability of the charter concept lies in a full understanding of the different charter forms available, the possible alternatives to these forms, the advantages and disadvantages of each, and the best way to accomplish the …

Allegheny Airlines, Inc. V. United States (Case Note), Gerald S. Reamey

Faculty Articles

On September 9, 1969, Robert W. Carey, a student pilot flying a solo cross-country flight in a plane owned by the operator of the flight school in which he was enrolled, collided with an Allegheny Airlines plane near Fairland, Indiana, destroying both aircraft and killing Carey, the crew of the Allegheny aircraft, and all 78 passengers. Allegheny Airlines, Inc. and G.E.C.C. Leasing Corporation brought suit-seeking recovery of damages sustained by their aircraft and engine, and named Forth Corporation, owner of the airplane and operator of the flying school, as a defendant. The trial court, in holding for the defendants, determined …

1975-1976 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

Allegheny Airlines, Inc. V. United States (Case Note), Gerald S. Reamey

Faculty Articles

Under Allegheny Airlines, the United States Court of Appeals for the 7th Circuit held that a flying school/aircraft owner is engaged in a joint enterprise with its student pilots and is vicariously liable for the student’s negligent acts. This Court and others have developed the principle that the vicarious liability of an aircraft owner for the actions of the pilot is dependent upon the existence of a principal/agent relationship between the owner and pilot. Courts developed this legal fiction to enable recovery by injured parties against the financially responsible principal, rather than effectively denying recovery by forcing personal judgments against …

1974-1975 School Year, St. Mary's University School Of Law

The Witan

No abstract provided.

Captain’S Advisory Council Notes, David A. Schlueter

Faculty Articles

On 24 and 25 June 1974, the Captain’s Advisory Council, with the cooperation of the Fort Meade JAG shop, sponsored a Regional Continuing Legal Education Conference at Fort Meade. The purpose of the conference was to provide a medium for presenting a continuing legal education program which would complement existing programs as well as allow junior officers of the JAG Corps to meet in a relaxed, yet productive, atmosphere. After a Council subcommittee outlined a tentative agenda, council members representing various fields of military law planned and implemented general presentations to the conference as a whole, as well as seminars …