Law Commons^™

Texans Shortlisted For The U.S. Supreme Court: Why Did Lightning Only Strike Once?, The Honorable John G. Browning

St. Mary's Law Journal

No abstract provided.

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Rethinking The Process Of Service Of Process, Mary K. Bonilla

St. Mary's Law Journal

Even as technology evolves, the Federal Rules of Civil Procedure, specifically Federal Rule 4, remains stagnate without a mechanism directly providing for electronic service of process in federal courts. Rule 4(e)(1) allows service through the use of state law—consequently permitting any state-approved electronic service methods—so long as the federal court where proceedings will occur, or the place where service is made, is located within the state supplying the law. Accordingly, this Comment explains that Rule 4 indirectly permits electronic service of process in some states, but not others, despite all 50 states utilizing the same federal court system. With states …

The Citation Of Unpublished Cases In The Wake Of Covid-19, Michael L. Smith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California's Rules of Court prohibit the citation of unpublished state court opinions. Courts and litigants, however, may still cite unpublished federal opinions and rulings and unpublished opinions from other states' courts.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 …

“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 …

The Paragraph 20 Paradox: An Evaluation Of The Enforcement Of Ethical Rules As Substantive Law, Donald E. Campbell

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses an issue courts across the country continue to struggle with: When are ethics rules appropriately considered enforceable substantive obligations, and when should they only be enforceable through the disciplinary process? The question is complicated by the ethics rules themselves. Paragraph 20 of the Scope section of the Model Rules of Professional Conduct includes seemingly contradictory guidance; it states the Rules are not to be used to establish civil liability, but also that they can be “some evidence” of a violation of a lawyer’s standard of care. Most states have adopted this paradoxal Paragraph 20 language. Consequently, courts …

Hearsay In The Smiley Face: Analyzing The Use Of Emojis As Evidence, Erin Janssen

St. Mary's Law Journal

Abstract forthcoming

Can Courts Require Civil Conduct?, Justice Douglas S. Lang, Haleigh Jones

St. Mary's Journal on Legal Malpractice & Ethics

There is considerable controversy on the question of whether courts can require civil conduct by lawyers, not just in Texas but across the country. To answer that question, it must be determined whether lawyer civility is at least impliedly part of the court and disciplinary rules or whether “civility” is only part of the professionalism creeds and merely “aspirational.” This Article attempts to answer this by discussing three viewpoints on enforcing civility. Further, it argues for honest recognition of the multitude of concerns about incivility and asserts that the legal profession must cultivate an increase in the spirit of civility …

The Freedom To Pursue A Common Calling: Applying Intermediate Scrutiny To Occupational Licensing Statutes (Note), Alexandra L. Klein

Faculty Articles

After the devastation of Hurricane Katrina, the monks at St. Joseph Abbey in Louisiana sought a new source of income. They began producing simple wooden coffins priced at much lower rates than caskets sold in funeral homes. After the Abbey had made a large investment in its business, St. Joseph Woodworks, the Louisiana State Board of Embalmers and Funeral Directors ordered it to close. Although the monks did not provide funeral or embalming services, a Louisiana statute regulating the funeral industry prohibited the monks from selling coffins.

Under the statute, "funeral directing" included "any service whatsoever connected with... the purchase …

False Security: How Courts Have Improperly Rendered The Protections Of The Protective Order Illusory, Ramona L. Lampley

Faculty Articles

The protective order is perhaps one of the most useful and “taken for granted” discovery devices contemplated by the Colorado and Federal Rules of Civil Procedure. The purpose of a joint protective order in civil litigation is to permit the parties to produce business information without fear that the information will be disseminated publicly, and with a court order that the information be used only for purposes of the present litigation. Blanket protective orders serve the interests of a just, speedy, and less expensive determination of complex disputes by alleviating the need for and delay occasioned by extensive and repeated …

Is Arbitration Under Attack?: Exploring The Recent Judicial Skepticism Of The Class Arbitration Waiver And Innovative Solutions To The Unsettled Legal Landscape, Ramona L. Lampley

Faculty Articles

Courts have become increasingly likely in recent years to find class arbitration waivers in consumer product sales unenforceable due to the lack of incentives for consumers and their attorneys to recover for "low value" claims. This article explores the history of the unconscionability and vindication-of-statutory rights doctrines invoked by those courts. It then analyzes the progression of the class arbitration waiver in the consumer products industry, with emphasis on the third-generation "incentivizing" agreement. This "incentivizing" agreement, if viewed at the time of the purchase agreement, can be mutually beneficial to seller and consumer. Some consumers may wish to forego the …

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …

Insurance Contracts And Judicial Decisions Over Whether Insurers Must Defend Insureds That Violate Constitutional And Civil Rights: An Historical And Empirical Review Of Federal And State Court Declaratory Judgments 1900-2000, Willy E. Rice

Faculty Articles

Empirical findings suggest that extralegal factors, such as geographic location, ethnicity, gender, disability, perceived sexual orientation, and age of third-party victims, influence judicial decisions as to whether liability carriers must defend or reimburse the costs of defending various lawsuits. After the introduction, Part II of this article presents a brief discussion of state and federal declaratory judgment statutes and of the public policy behind liability and indemnification insurance contracts. Part III examines the origin and scope of insurers’ duty to defend, duty to pay legal expenses, and duty to reimburse litigation costs when third-party victims sue policyholders. Part IV argues …

Race, Gender, “Redlining,” And The Discriminatory Access To Loans, Credit, And Insurance: An Historical And Empirical Analysis Of Consumers Who Sued Lenders And Insurers In Federal And State Courts, 1950-1995, Willy E. Rice

Faculty Articles

Courts have failed to consistently remedy insurers’ and lenders’ discrimination against low-income individuals, women, and minorities. State and federal courts have tried to resolve disputes involving redlining, unequal access to capital, and insurance discrimination. Because of courts’ failures, Congress passed the Equal Credit Opportunity Act of 1974 (“ECOA”) and the Community Reinvestment Act of 1977 (“CRA”) to protect minorities and low income individuals. But the ECOA and CRA have not achieved their stated goals of eradicating either insurance or mortgage redlining.

In most states, the responsibility of enforcing federal fair-lending laws and eradicating all sorts of financial redlining is given …

Texas' New Trademark Antidilution Statute - Useful Or Useless New Protection For Texas Trademarks., Richard Taylor

St. Mary's Law Journal

Texas courts must set forth clear and concise guidelines for trademark antidilution enforcement. The adoption of a trademark antidilution statute substantially alters Texas trademark law. The statute allows a trademark owner to enjoin acts which dilute a registered or common law trademark’s distinctive quality. It applies whether competition exists between the parties or a likelihood of confusion exists as to the owner of the mark. The statute adds a new dimension to trademark protection in Texas because it creates a property interest in the trademark. As promising as these protections sound, the new antidilution statute may prove ineffective due to …

Texas Adoption Laws And Adoptee's Rights Of Access To Confidential Records., Cynthia A. Rucker

St. Mary's Law Journal

Since the adoption process affects the lives of numerous people, courts must reach a decision which benefits all parties involved in the process. Many adoptees retain an emotional desire, or a psychological need, to ascertain the identity of their birth parents. This desire or need is in direct conflict with state statutes mandating adoption information remain sealed and confidential. In recent years, courts across the country have considered several cases challenging the validity of confidentiality statutes on constitutional grounds. Primarily, adoptees have asserted confidentiality statutes deny them a fundamental right to privacy, a right to receive information, and a right …