Law Commons^™

Sorting: Legal Specialization And The Privatization Of The American Legal Profession, Michael S. Ariens

Faculty Articles

Beginning in the 1950s, legal specialization was promoted to the majority of the American legal profession, small firm and solo practice lawyers, by the elite of the bar as the future of legal professionalism. Legal specialization was a form of sorting lawyers, and sorting was contrary to the traditional understanding of an undivided legal profession. Over the course of the next thirty years, this effort succeeded. This new understanding of legal professionalism emphasized the idea of competence based on a deep but particularized knowledge of law. This resulted in a slipping away of the beliefs that law was a public …

The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter

Faculty Articles

On November 19, 2014, the Texas Supreme Court issued an Order amending all of the Texas Rules of Evidence, effective April 1, 2015. In its Order, the Court explained that the amendments were part of an effort to “restyle” the Rules, to make them as consistent as possible with the Federal Rules of Evidence, and to make them easier to understand.

The 2015 amendments to the Texas Rules of Evidence are a commendable step toward making the Rules more user-friendly. It is clear to even the casual reader that the reformatting of the Rules, through the use of consistent and …

A Death At Crooked Creek: The Case Of The Cowboy, The Cigarmaker, And The Love Letter, By Marianne Wesson (Book Review), Michael S. Ariens

Faculty Articles

Marianne Wesson’s A Death at Crooked Creek tells the story of one of the most intriguing mysteries in American legal history. For evidence teachers, and possibly even law students, Mutual Life Ins. Co. v. Hillmon is a classic nineteenth century mystery story. The case raises the question: Was the deceased John W. Hillmon, who had recently taken out the extraordinary sum of $25,000 in life insurance, or was it Frederick Adolph Walters, an itinerant who had left Iowa a year earlier?

In addition to teaching at the University of Colorado School of Law, Wesson is the author of three mystery …

The Costs Of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, And The Question Of Who Decides, Dora W. Klein

Faculty Articles

Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States.

In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness …

The Mentally Disordered Criminal Defendant At The Supreme Court: A Decade In Review, Dora W. Klein

Faculty Articles

In the past decade, at least eight cases involving issues at the intersection of criminal law and clinical psychology have reached the United States Supreme Court. Of particular interest are those cases which concern three general topics: the culpability of juvenile offenders; mental states and the criminal process, including the presentation of mental disorder evidence, competency to stand trial, and competency to be executed; and the preventive detention of convicted sex offenders.

Of these eight cases, two cases cases adopted categorical exclusions from certain kinds of punishment, three involved questions about mental states (and in two of these the Court …

Take One Step Forward: Federal Courts Continue To Find That Volunteers Are Shielded From Retaliation Based On Protected Speech Under The First Amendment, David A. Grenardo

Faculty Articles

As an issue of first impression in the Fifth Circuit's jurisdiction, a United States district court in Texas considered whether it is impossible to state a claim for speech retaliation which involves the loss of a plaintiff's volunteer ministry rights and credentials. The court, in line with decisions from other federal courts and analogous Supreme Court cases, determined that being a volunteer is the type of governmental benefit or privilege the deprivation of which triggers First Amendment scrutiny, and it held that the volunteer chaplain stated a valid claim for retaliation. This article summarizes the law concerning retaliation against volunteers …

Rehabilitating Mental Disorder Evidence After Clark C. Arizona: Of Burdens, Presumptions, And The Rights To Raise Reasonable Doubt, Dora W. Klein

Faculty Articles

The right not to be found guilty of a crime absent proof beyond a reasonable doubt is a powerful right. It can be undermined, however, by rules that at first seem to have little to do with reasonable doubt or with burdens of proof.

In the recent case of Clark v. Arizona, the Supreme Court considered whether states may enact rules that categorically prohibit criminal defendants from offering mental disorder evidence for the purpose of raising reasonable doubt regarding the mens rea element of a charged offense. In Arizona law, mental disorder evidence is inadmissible for the purpose of disproving …

New Legal Rights In The Legal System Of The United States Of America, Roberto Rosas, Bill Piatt

Faculty Articles

What new rights does the American legal system offer at the start of the 21st century? This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of 7 new rights created by state and federal laws. The new legal rights in the United States legal system discussed in this article include the following: 1) The right …

Judge Wayne Justice: A Life Of Human Dignity And Refractory Mules, Albert H. Kauffman

Faculty Articles

Judge Wayne Justice had a deep impact on the lives of many people and was an unyielding advocate who protected the rights of all U.S. citizens. Many of the Judge’s orders and consent decrees forced Texas to comply with more stringent federal requirements in education and health care and had a far reaching effect across the nation. Judge Justice presided over Doe v. Plyler that ensured the benefit of public education for the children of undocumented immigrants. In United States v. Texas, Judge Justice required that the Texas Education Agency monitor school district actions and policies to assure that they …

Federal Rules Update: Amendments To The Federal Rules Of Procedure And Evidence, David A. Schlueter

Faculty Articles

In a very unusual step, Congress enacted Federal Rule of Evidence 502. This rule deals with the attorney-client and work product privileges. The proposal for this rule was driven primarily by the concern over rising litigation costs associated with discovery, especially electronic discovery. Experience had demonstrated that in complex litigation cases lawyers spend considerable time and effort to preserve privileged documents. If a privileged document is mistakenly produced, there is a risk that a court would find subject matter waiver, not only in the case at bar, but in other cases as well.

The new rule became effective on September …

The Lord In The Law: Reflections On A Catholic Law School, Aloysius A. Leopold

Faculty Articles

The symbiosis between law and morality has played a major role in universities since their formation and is critical to our moral and legal future. Each is dependent on the other, and an attempt to separate the two will seal the fate of our society as a whole. The Catholic law school must ensure that this symbiosis is never broken, but is fulfilled by incorporating relevant new courses and by teaching present classes in light of the Catholic message. Further, Catholic defense clinics should be offered to enrich the lives of others, and priests and nuns should be made available …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …

Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey

Faculty Articles

When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …

Teaching Transformative Jurisprudence (Film Review), Vincent R. Johnson

Faculty Articles

The Road to Brown is a film that deals with the transformative judicial ruling of Brown v. Board of Education. Many regard this case as the most important holding ever made by a United States court. The Road to Brown offers law professors a superb vehicle for bringing to the classroom the attention to persons, sense of history, and focus on litigation strategy that a great decision demands.

The Road to Brown provides a rich socio-legal-historical perspective on the events that culminated in the 1945 Supreme Court ruling barring racial segregation in public elementary schools. The program blends together photographs, …

On The Road Of Good Intentions: Justice Brennan And The Religion Clauses, Michael S. Ariens

Faculty Articles

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect …

Banning The Buttons: Employer Interference With The Right To Wear Union Insignia In The Workplace, John W. Teeter Jr

Faculty Articles

The right for workers to wear union insignia without fear of retaliation in the workplace has been constricted, undermined, and jeopardized by judicial and National Labor Relations Board (“Board”) decisions. As a consequence, at least three problems arise: (1) litigation over this issue increases as the law becomes increasingly opaque; (2) workers are wrongfully denied the opportunity to proclaim their union sympathies; and (3) the Board and courts send an implicit message that the freedom to express union support is a second-class right that employers may override by offering a pretextual justification. This subordination of the right to wear union …

Trial And Appellate Criminal Procedure, John M. Schmolesky

Faculty Articles

Recent state and federal decisions significantly influenced Texas criminal procedure at both the trial and appellate levels. These decisions generally affected three main areas of the punishment stage of Texas criminal trials. First, they defined the scope of evidence admissible at the punishment stage. Second, they addressed procedural and substantive questions concerning the special punishment issue of use or exhibition of a deadly weapon. Third, they raised substantial questions about the constitutionality of the death penalty as applied by Texas courts.

Texas courts also faced numerous challenges in the aftermath of several important state and federal constitutional decisions. These decisions …

Just Compensation And The Condemnation Of Future Interests: Empirical Evidence Of The Failure Of Fair Market Value, Laura H. Burney

Faculty Articles

Just compensation for future interests should be directly responsive to the Fifth Amendment by directly addressing its dictate rather than detouring through objective standards which stress valuation rather than fairness. It is generally inappropriate to strictly adhere to any one predetermined standard in compensating owners whose property has been taken. The reasons behind the rules that govern the compensation awarded to an owner whose property has been taken have not vanished. However, these rules are frequently forsaken. If the United States Supreme Court is taken at its word, the normative basis for providing just compensation in all takings cases should …

When Soldiers Are Defendants, David A. Schlueter

Faculty Articles

In O’Callahan v. Parker, the U.S. Supreme Court adopted a “service connection” requirement for court-martial subject matter jurisdiction. For almost two decades that requirement caused numerous problems of interpretation and application. In Solorio v. United States, the Court overruled its decision in O’Callahan. While assigned to a Coast Guard unit in Juneau, Alaska, the accused committed numerous acts of sexual abuse against two minor daughters of other Coast Guard members. The crimes were not discovered, however, until after he had been transferred to Governors Island, New York, where he committed additional acts of sexual abuse on other daughters of Coast …

Investigative Detentions For Purposes Of Fingerprinting, David A. Schlueter

Faculty Articles

This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers. All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints. Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes. Were the fingerprints admissible?

United …

The Permissible Scope Of Texas Automobile Inventory Searches In The Aftermath Of Colorado V. Bertine: A Talisman Is Created, Gerald S. Reamey, Michael H. Bassett, John A. Molchan

Faculty Articles

The fourth amendment to the United States Constitution guarantees freedom from unreasonable searches and seizures. The warrant and probable cause requirements advance this constitutionally implied privacy right. However, with respect to automobile searches, strict adherence to these safeguards has been eschewed in favor of more flexible, and arguably less protective, versions of reasonableness.

In 1981, in Gill v. State, the Texas court addressed the permissible scope of inventory searches, holding that the police may not search the locked trunk of an automobile while conducting an inventory search. Despite the simplicity of the Gill rule, a number of recent cases, while …

A Uniform Rule Governing The Admission And Practice Of Attorneys Before United States District Courts, Michael S. Ariens

Faculty Articles

The increase in the interstate and international practice of law necessitates a review of the rules governing the admission of attorneys to practice before federal district courts. By virtue of the sweep of their jurisdictional net, federal district courts are likely to be the fora for litigating most interstate or international disputes. The present rules, based upon the antiquated notion that lawyers only rarely practice law in federal district court, and then only in the federal district court located in the state in which they practice, do not address this change in the practice of law.

For these reasons, a …

New Jersey V. T.L.O.: The Supreme Court’S Lesson On School Searches, Gerald S. Reamey

Faculty Articles

Considerable disagreement persists as to the fourth amendment rights of students within schools. Particularly, this disagreement regards the extent to which fourth amendment rights possessed by students may frustrate reasonable attempts by educators to maintain the order necessary to preserve an educational environment.

In New Jersey v. T.L.O., the Supreme Court considered an argument advanced by the State of New Jersey that the “pervasive supervision” of school children diminishes the legitimate expectation of privacy a child may have in property “unnecessarily” brought to school. The Court concluded that the necessity of maintaining security and order in the educational environment was …

Federalism And Supreme Court Review Of Expansive State Court Decisions: A Response To Unfortunate Impressions, David A. Schlueter

Faculty Articles

This article addresses the Burger Supreme Court’s approach to federalism and concludes that the Court seems to be reordering federal-state judicial relations. This reordering appears to be occurring at the expense of both state autonomy and individual liberties, especially the rights of state criminal defendants.

Although there certainly have been cases which suggest the Burger Court has a lopsided federalism, upon thorough analysis of these cases, this determination is shown to be incorrect. In fact, the present Court greatly respects state autonomy and the independence of state courts. Further, the Supremacy Clause requires the Court to serve as final arbiter …

Mueller V. Allen: A Fairer Approach To The Establishment Clause, Michael S. Ariens

Faculty Articles

The decision upheld by the United States Supreme Court in Mueller v. Allen helds a new dawn in establishment clause jurisprudence. This five-to-four decision, written for the majority by Justice Rehnquist, upheld a Minnesota statute permitting taxpayers to deduct the tuition, textbook, transportation, and instructional material expenses of their children when calculating their state tax liability. By this decision, the Court has cleared the way for an accommodation between church and state that more equitably recognizes the principles and values that the religion clauses were intended to protect.

Following a review of the history of the establishment clause, tuition tax …

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 …

Rule 3, The Enabling Act, And Statutes Of Limitations, David A. Dittfurth

Faculty Articles

Rule 3 of the Federal Rules of Civil Procedure appears to be a model of simplicity and clarity. It describes the process for commencement of a civil action, and in defining “commencement” appears to provide guidance on how to begin an action which complies with a statute of limitations.

As a result of the decision in Walker v. Armco Steel Corp., that appearance is misleading regarding state statutes of limitations applicable in federal court actions brought on the basis of diversity of citizenship jurisdiction. There, the Court made reference only to state statutes of limitations, and expressly avoided deciding the …

The Younger Abstention: Primary State Jurisdiction Over Law Enforcement, David A. Dittfurth

Faculty Articles

The abstention doctrines have received much attention by the United States Supreme Court over the last decade. These doctrines are represented by judicial rules that require federal trial courts, in appropriate circumstances, to abstain from exercising subject matter jurisdiction although they clearly have the power to do so. As a result, the particular case is shunted back into a state judicial system for determination.

The most confusing of these doctrines is the one arising in major part from Younger v. Harris. In short, this case stands for the rule that, once a state criminal prosecution has been initiated, a federal …

Judicial Reasoning And Social Change, David A. Dittfurth

Faculty Articles

Some have begun to doubt whether courts adequately respond to recent social problems. Formulated rules, principles, and statutes govern a case in court, and these commanding communications addressed to judges theoretically guide and control the decision-making process. Rules, although often imprecise, are subjected to the scrutiny of the legal profession, which is trained to interpret their meaning and possible application in different fact situations. This, in turn, promotes a high degree of social and political stability since there is less ambiguity as to what constitutes permissible or required behavior.

Attitudes, social institutions, language, and critical decision making are all factors …