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Articles 1 - 30 of 32
Full-Text Articles in Jurisprudence
Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum
Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum
ExpressO
The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris
University of San Diego Public Law and Legal Theory Research Paper Series
This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …
Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark
Competency To Stand Trial On Trial, Grant H. Morris, Ansar M. Haroun, David Naimark
University of San Diego Public Law and Legal Theory Research Paper Series
This Article considers the legal standards for the determination of competency to stand trial, and whether those standards are understood and applied by psychiatrists and psychologists in the forensic evaluations they perform and in the judgments they make–judgments that are routinely accepted by trial courts as their own judgments. The Article traces the historical development of the competency construct and the development of two competency standards. One standard, used today in eight states that contain 25% of the population of the United States, requires that the defendant be able to assist counsel in the conduct of a defense “in a …
False Advertising, Animals, And Ethical Consumption, Carter Dillard
False Advertising, Animals, And Ethical Consumption, Carter Dillard
Carter Dillard
In light of the fact that today's consumers often want their products to be created in the most environmentally, globally, and animal friendly ways possible, unethical sellers sometimes succumb to the incentive to persuade consumers that goods were created more ethically than they actually were. False advertising law represents a rare, albeit roundabout, legal opening for animal advocates to deal with issues of animal mistreatment, regardless of legislative and executive branch disregard of the importance of animal protection. Whether there is a beneficial change in the law or not, current opportunities in the market for these cases should be sought …
For Any Reason Or No Reason At All: Reconciling Employment-At-Will With The Rights Of Texas Workers After Mission Petroleum Carriers Inc. V. Solomon., Jason P. Lemons
For Any Reason Or No Reason At All: Reconciling Employment-At-Will With The Rights Of Texas Workers After Mission Petroleum Carriers Inc. V. Solomon., Jason P. Lemons
St. Mary's Law Journal
Since its inception, Texas has been a favored destination for both up-start entrepreneurs and established corporations. One of the less heralded, but nonetheless significant factors that makes Texas so attractive to businesses is its long-standing devotion to the doctrine of at-will employment. The doctrine generally states that any employment relationship not governed by contract or a statutory provision is terminable at any time by either the employer or the employee for any reason or no reason at all. At-will employment has been praised by courts and commentators for the flexibility it offers both parties in decision making. Nevertheless, the at-will …
The Texas Cave Bug And The California Arroyo Toad Take On The Constitution's Commerce Clause., Daniel J. Lowenberg
The Texas Cave Bug And The California Arroyo Toad Take On The Constitution's Commerce Clause., Daniel J. Lowenberg
St. Mary's Law Journal
Abstract Forthcoming.
Playing The Probate Card: A Plaintiff's Guide To Transfer To Statutory Probate Court., Joseph R. Marrs
Playing The Probate Card: A Plaintiff's Guide To Transfer To Statutory Probate Court., Joseph R. Marrs
St. Mary's Law Journal
Plaintiffs and defendants in tort litigation by or against a probate estate can be better-litigated in statutory probate court. Since the 1970s, Texas probate courts have steadily risen to power. The Texas Supreme Court attempted to curtail this practice in Seay v. Hall. The Texas legislature overruled Seay and continued to expanded the jurisdiction of statutory probate courts. Despite the continuing “merry dance” between the legislation and judicial review, the legitimate purpose of expanding lawsuits to probate court remains that of efficiently resolving lawsuits linked to guardianship or decedents’ estates while preserving all parties’ interests. The author uses an example …
Legal Malpractice In Texas: Examining Selected Cases And Forecasting Future Trrends Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Wallace B. Jefferson
Legal Malpractice In Texas: Examining Selected Cases And Forecasting Future Trrends Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Wallace B. Jefferson
St. Mary's Law Journal
Little hard data exists concerning legal malpractice in Texas. What’s more, few legal law malpractice rulings are published. To date, there are only fifty written opinions on legal malpractice from Texas intermediate appellate courts. The activity that most often gave rise to a claim of legal malpractice involved the preparation, filing, and transmittal of documents, accounting for about a quarter of all claims. In San Antonio, Chief Justice Alma Lopez of the Fourth District Court of Appeals discussed common issues she sees in her courtroom. The issues ranged from failures to follow simple court rules to more substantial failures of …
Predatory Paternity Establishment: A Critical Analysis Of The Acknowledgment Of Paternity Process In Texas., Anne Greenwood
Predatory Paternity Establishment: A Critical Analysis Of The Acknowledgment Of Paternity Process In Texas., Anne Greenwood
St. Mary's Law Journal
Child support programs across the nation are struggling to achieve even meager recovery of the financial support children need from their parents. Obtaining child support payments from men who are not fathers and who unknowingly signed their rights away is not a sound long-term policy. States must ensure that children are supported and their custodial mothers receive assistance from non-custodial fathers. Logically, the law should only compel a man to support a child he fathered. If a man chooses to assume not only the financial obligation but also the relationship which belongs to the biological father; then such agreement must …
Family Violence Protective Orders In Texas And Appelate Review: Are They Meant For Each Other., Manuel C. Maltos
Family Violence Protective Orders In Texas And Appelate Review: Are They Meant For Each Other., Manuel C. Maltos
St. Mary's Law Journal
Historically, protective orders have been viewed as an effective civil legal recourse for those affected by family violence. Title Four of the Texas Family Code governs these protective orders and sets forth the requirements for obtaining such an order. With consistent improvements to Title Four, the legislature has responded to society's decreasing tolerance of family violence. As a result, now the Family Code mandates the issuance of a protective order as provided by Title Four, regardless of whether a divorce is pending. Further legislative efforts also lengthened the maximum duration of a protective order from one year to two years. …
Stranded In The Wastelands Of Unregulated Roadway Police Powers: Can Reasonable Officers Ever Rescue Us., Keith S. Hampton
Stranded In The Wastelands Of Unregulated Roadway Police Powers: Can Reasonable Officers Ever Rescue Us., Keith S. Hampton
St. Mary's Law Journal
This Article describes the present state of roadway police power and explores the vulnerability of drivers and occupants to police abuse, specifically using pretextual stops. Today, state and federal courts have made many police power accommodations to the constitutional reasonableness requirement. Current Fourth Amendment jurisprudence justifies almost all conceivable police seizures of people in vehicles. If the police officer can point out any traffic law violation, he can arrest. And if he can arrest under those circumstances, then the already blurred line between detentions and arrest becomes inconsequential, constitutionally speaking. This Article proposes that the Texas Court of Criminal Appeals …
Civillity In The Legal Profession: A Survey Of The Texas Judiciary., Catherine M. Stone, Kimberlyl S. Keller, Shane J. Stolarczyk
Civillity In The Legal Profession: A Survey Of The Texas Judiciary., Catherine M. Stone, Kimberlyl S. Keller, Shane J. Stolarczyk
St. Mary's Law Journal
Abstract Forthcoming.
The Charity Oversight Authority Of The Texas Attorney General., John W. Vinson
The Charity Oversight Authority Of The Texas Attorney General., John W. Vinson
St. Mary's Law Journal
The Attorney General of Texas is the only elected official charged with regulating the state’s charitable interest. This duty and authority over charitable assets and entities are comprehensive and unique in themselves. Although the broader state representation role of American attorneys general has evolved considerably and been substantively codified in the statutory law, the area of charity regulations has remained remarkably true to its common law root. This Article will briefly examine the early roots of charity regulation and then discuss the authority and duties of the Attorney General of Texas in the modern context of charity regulation. In Texas, …
School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii
School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii
St. Mary's Law Journal
The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …
Decriminalizing Sexual Conduct: The Supreme Court Ruling In Lawrence V. Texas., Jessica A. Gonzalez
Decriminalizing Sexual Conduct: The Supreme Court Ruling In Lawrence V. Texas., Jessica A. Gonzalez
St. Mary's Law Journal
Throughout America, homosexual men and women have fought for the protection of their constitutional rights; gay men, lesbian women, and bisexual persons have petitioned the government for marital rights, adoption privileges, and recognition in the armed forces. While American culture has changed to include homosexuals in its daily life, the judicial branch has been hesitant in accepting gay culture within the legal system. While American courts remained reluctant to invalidate anti-sodomy statutes, Lawrence v. Texas pushed homosexual issues to the forefront. Gay activists demanded that the courts recognize homosexual individuals as persons deserving of constitutional protections. In doing so, Lawrence …
Is Sue And Be Sued Language A Clear And Unambiguous Waiver Of Immunity., A. Craig Carter
Is Sue And Be Sued Language A Clear And Unambiguous Waiver Of Immunity., A. Craig Carter
St. Mary's Law Journal
Because “sue and be sued” language is ambiguous at best, courts should not find that this language is a waiver of immunity. Under Texas law, governmental entities—including the state, its agencies, and political subdivisions—are entitled to sovereign immunity from both suit and liability. For sovereign immunity to be applicable to governmental entities, sovereign immunity applies unless the legislature has clearly and unambiguously waived it. Although numerous Texas appellate courts have held that “sue and be sued” language is a waiver of sovereign immunity, the Texas Supreme Court has squarely addressed the issue only once, in Missouri Pacific Railroad Co. v. …
Aboilishing The Texas Jury Shuffle., Michael M. Gallgher
Aboilishing The Texas Jury Shuffle., Michael M. Gallgher
St. Mary's Law Journal
This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …
The Texas Courts' Adventures In Locating Texas Coastal Boundaries: Redrawing A Line In The Sand: Kenedy Memorial Foundation V. Dewhurst Defining An Exception To Luttes V. State., Thomas M. Murray
St. Mary's Law Journal
Kenedy Memorial Foundation v. Dewhurst determined the boundary of the Laguna Madre by narrowing the scope of the exception found in Luttes v. State. Luttes established the “mean high tide” test (MHHT), which governs lands controlled by civil law. The MHHT determines a boundary by the mean of the high tide without regard to a summer or winter tide. The exception, however, does not require the application of the MHHT in areas in which tidal gauges could not be used accurately. The Laguna Madre is a shallow strip of water, ranging between three and five miles in width, running between …
Ethical Issues In Judicial Campaigns Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Micahel E. Keasler
Ethical Issues In Judicial Campaigns Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Micahel E. Keasler
St. Mary's Law Journal
Abstract Forthcoming.
What Attorneys Should Know: A Comprehensive Analysis Of Proposed Rule 8a Third Annual Symposium On Legal Malpractice & Professional Responsibility: Recent Development., Kellie E. Billings
What Attorneys Should Know: A Comprehensive Analysis Of Proposed Rule 8a Third Annual Symposium On Legal Malpractice & Professional Responsibility: Recent Development., Kellie E. Billings
St. Mary's Law Journal
Abstract Forthcoming.
New Texas Ad Litem Statute: Is It Really Protecting The Best Interests Of Minor Children Third Annual Symposium On Legal Malpractice & Professional Responsibility: Comment., Mary E. Hazlewood
St. Mary's Law Journal
Abstract Forthcoming.
Texas's Statutory Exclusionary Rule: Analyzing The Inadequacies Of The Current Application Of Other Person(S) Pursuant To Article 38.23(A) Of The Texas Code Of Criminal Procedure., Nathan L. Mechler
St. Mary's Law Journal
Abstract Forthcoming.
Hines 57: The Catchall Case To The Texas Kidnapping Statute., Karen Bartlett
Hines 57: The Catchall Case To The Texas Kidnapping Statute., Karen Bartlett
St. Mary's Law Journal
This Recent Development asserts that the Texas Court of Criminal Appeals’ refusal to define “substantial interference” in relation to the kidnapping statute, opens the floodgates for every act of confinement or movement committed in the course of a substantive offense constituting kidnapping. The Court maintains it is up to the jury to define the term. If the Texas Legislature does not narrowly define the kidnapping statute, virtually every assault, robbery, sexual assault, and some murders will constitute both the substantive offense plus kidnapping. Furthermore, such logic would in effect bootstrap murder into capital murder, which happened in Herrin v. State. …
Hipaa Implications For Attorney-Client Privilege Third Annual Symposium On Legal Malpractice & (And) Professional Responsibility., Alex L. Bednar
Hipaa Implications For Attorney-Client Privilege Third Annual Symposium On Legal Malpractice & (And) Professional Responsibility., Alex L. Bednar
St. Mary's Law Journal
Abstract Forthcoming.
A National Tax Bar: An End To The Attorney-Accountant Tax Turf War., Katherine D. Black, Stephen T. Black
A National Tax Bar: An End To The Attorney-Accountant Tax Turf War., Katherine D. Black, Stephen T. Black
St. Mary's Law Journal
Abstract Forthcoming.
A Continuing Whimsical Search For The True Meaning Of The Term Products Liability Litigation., Charles E. Cantu
A Continuing Whimsical Search For The True Meaning Of The Term Products Liability Litigation., Charles E. Cantu
St. Mary's Law Journal
Abstract Forthcoming.
United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders
United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders
St. Mary's Law Journal
Over the years Congress has enacted and amended several versions of the United States Code (U.S.C) § 925(c). Several reported cases illustrate the courts’ early efforts to develop a coherent body of jurisprudence with respect to the procedural and substantive aspects of U.S.C. § 925(c) judicial review. Specifically, the § 925(c) denials of relief by the Director before the congressional appropriations ban commenced in 1993. Although the methodology and reasoning behind these decisions differ in their details, several themes are discernable. First, even without the express provisions for judicial review added by the Firearms Owners Protection Act (FOPA), courts consistently …
A Rose Is A Rose Is A Rose - Or Is It - Fiduciary And Dtpa Claims Against Attorneys Third Annual Symposium On Legal Malpractice & (And) Professional Responsibility., James M. Parker Jr., Thomas H. Watkins, Rachel L. Noffke
A Rose Is A Rose Is A Rose - Or Is It - Fiduciary And Dtpa Claims Against Attorneys Third Annual Symposium On Legal Malpractice & (And) Professional Responsibility., James M. Parker Jr., Thomas H. Watkins, Rachel L. Noffke
St. Mary's Law Journal
Abstract Forthcoming.
Punishment Evidence: Grunsfeld Ten Years Later., Edward L. Wilkinson
Punishment Evidence: Grunsfeld Ten Years Later., Edward L. Wilkinson
St. Mary's Law Journal
This Article deals with the admissible evidence during the punishment phase of a non-capital trial in Texas. In 1989, the Texas Legislature amended Article 37.07, Section 3(a) of the Texas Code of Criminal Procedure to widen the scope of evidence admissible during the punishment phase of a non-capital trial. Grunsfel v. State, the leading case, the Court of Criminal Appeals interpreted the statute so narrowly as to render the changes meaningless. In 1993, the legislature amended the statute a second time; it provided for a more expansive range of evidence to be introduced, but deleted a critical definition of what …
The Seat Belt Defense In Texas., Brian T. Bagley
The Seat Belt Defense In Texas., Brian T. Bagley
St. Mary's Law Journal
This Comment calls upon Texas courts to recognize the seat belt defense as a form of comparative responsibility. It has become standard procedure for Americans riding in motor vehicles to “buckle up.” Seat belt usage has risen since 1994, steadily increasing to seventy-five percent in 2002, with an increase of two percent in the last year alone. Many American jurisdictions, however, still refuse to allow evidence of seat belt use or nonuse to be considered in civil suits. Courts do not allow the failure to wear a safety belt in violation of the mandatory seat belt usage statute to be …