Jurisprudence Commons^™

Principled Silence, Tobias Barrington Wolff

All Faculty Scholarship

No abstract provided.

Feminism For Men: Legal Ideology And The Construction Of Maleness, Nancy Levit

Nancy Levit

It may seem a little odd to suggest that feminist theory has overlooked men. Yet, in several important respects, apart from the role of culprit, men have been largely omitted from feminism. Feminist legal theorists have paid mild attention to the "Can men be feminists?" question but this issue is usually relegated to footnotes. The negative effect gender role stereotypes have on men is typically subsidiary to the main focus of feminist legal literature, which has concentrated on documenting the patterns of subordination of women and on questions of feminist ideology.

The primary purpose of this article is to suggest …

Making Criminal Codes Functional: A Code Of Conduct And A Code Of Adjudication, Paul H. Robinson, Peter D. Greene, Natasha R. Goldstein

All Faculty Scholarship

A traditional criminal code performs several functions. It announces the law's commands to those whose conduct it seeks to influence. It also defines the rules to be used in deciding whether a breach of the law's commands will result in criminal liability and, if so, the grade or degree of liability. In serving the first function, the code addresses all members of the public. In performing the second function, it addresses lawyers, judges, jurors, and others who play a role in the adjudication process. In part because of these different audiences, the two functions call for different kinds of documents. …

Self-Defense As A Rational Excuse, Claire Oakes Finkelstein

All Faculty Scholarship

No abstract provided.

Washington Defendants' New Right Of Pre-Trial Flight, Christopher T. Igielski

Seattle University Law Review

Certainly, it is only by disregarding the "victim's rights" that one can begin to fathom the Washington Supreme Court's decision in State v. Jackson. This decision reversed the conviction of a man who raped his four-year-old niece on Christmas Eve in 1979, causing her to contract gonorrhea. Following his arraignment, Jackson fled and failed to appear at his trial. After attempts to locate Jackson failed, a trial was held in absentia' and he was found guilty of rape, with sentencing suspended pending his return to custody. Jackson evaded the law for nearly thirteen years.'0 Shortly after his eventual capture …

This Could Be Your Culture--Junk Speech In A Time Of Decadence, Pierre Schlag

Publications

No abstract provided.

Free Trade Agreements And The Federal Courts: Emerging Issues., Robert P. Deyling

St. Mary's Law Journal

The United States and Canada, and more recently Mexico, have tried to resolve certain types of international trade disputes through a unique process. Under the United States-Canada Free Trade Agreement (CFTA) and its successor, the North American Free Trade Agreement (NAFTA), disputing parties may choose binational panels to review disputes over antidumping and countervailing duty determinations. Binational panel review entirely replaces national judicial review for each case in which the parties choose the panel process. Panels are convened on a case-by-case basis from a list of trade experts submitted by disputing countries. Panels must follow relevant national trade law in …

Adarand Constructors, Inc. V. Pena: The Lochnerization Of Affirmative Action Recent Development., Patricia A. Carlson

St. Mary's Law Journal

The Supreme Court’s decision in Adarand will lead to the invalidation of many federal programs because the decision requires strict scrutiny for all affirmative action programs, including federal programs. The Court ignores both constitutional strictures and American history by resorting to Lochner era rulings of striking down federal socio-economic regulations. Overturning the clear precedent of Fullilove undermines stare decisis by valuing the language of the Court’s decision over its meaning.   The Court in Adarand presumes that the Constitution is color-blind. This presumption ignores the history leading up to the Reconstruction Amendments, the purpose of the Reconstruction Amendments, and the intentions …

Gatekeeping In Texas: The Practical Impact Of Full Implementation Of The Texas Rules Of Civil Evidence Regarding Experts., Suzanne B. Baker

St. Mary's Law Journal

Abstract Forthcoming.

A Fair Day's Pay For A Fair Day's Work: Time To Raise And Index The Minimum Wage., William P. Quigley

St. Mary's Law Journal

Millions of people are working for a living but not receiving a living wage in return for their work. The value of the minimum wage continues to erode, with the Congressional Research Service estimating the minimum wage would have to rise to $6.75 per hour in 1996 to equal the purchasing power it represented in 1978. It is not in the common interest, nor in the interest of justice, for people to work full-time, yet remain mired in poverty. Reforming the minimum wage by raising it and indexing it for inflation is a critical step toward attaining Franklin Delano Roosevelt’s …

The Maquiladora Industry And Environmental Degradation In The United States-Mexico Borderlands Symposium - The Environment And The United States-Mexico Border., Edward J. Williams

St. Mary's Law Journal

Periods of rapid industrial growth and environmental degradation in the United States-Mexico Borderlands have historically coincided with negative shifts in Mexico’s economy. The Mexican economic crisis of 1982 sparked burgeoning growth in the maquiladora industry, with plants in the Borderlands increasing at a rate of fifteen percent per year. Due to the Mexican economic crisis of the mid-1990s, renewed industrial expansion and environmental degradation is once again expected. The maquiladora program is frequently used to identify cooperative industrial efforts between the United States and Mexico. The term refers to an assembly process in which twin plants operate on opposite sides …

Private Enforcement Of Nafta Environmental Standards Through Transnational Mass Tort Litigation: The Role Of United States Courts In The Age Of Free Trade Symposium - The Environment And The United States-Mexico Border - Comment., Michael Sang H. Cho

St. Mary's Law Journal

Maquiladoras are manufacturing facilities along the United States-Mexico border operated by transnational corporations (TNCs). The arrival of the North American Free Trade Agreement (NAFTA) meant TNCs are free to move capital and operations across the United States-Mexico border at will. Yet, the maquiladora workers are not free to travel or seek employment across the border. The NAFTA debate in the United States raised public awareness of environmental problems in the border region. Nevertheless, maquiladora workers have lived with environmental degradation long before the NAFTA environmental debate began. With the passage of NAFTA, increased trade and the burgeoning industries along the …

Nafta And The Environment: A Proposal For Free Trade In Hazardous Waste Between The United States And Mexico Symposium - The Environment And The United States-Mexico Border., David W. Eaton

St. Mary's Law Journal

Over the past decade, the transboundary movement of hazardous waste has become an important issue. Because of its geographic proximity to the United States and its desire to attract foreign investment, Mexico has become one of the United States-owned maquiladoras’ favorite dumping grounds. The recent North American Free Trade Agreement (NAFTA) may only exacerbate matters. Because the health and environmental risks associated with the inappropriate disposal of hazardous waste knows no boundaries, it is important NAFTA signatories jointly address waste issues. While NAFTA has had a positive impact on environmental protection in the United States and Mexico, the NAFTA debate …

The Habeas Corpus Revolution: A New Role For State Courts., Charles F. Baird

St. Mary's Law Journal

This Article’s purpose is to portray recent changes in the United States Supreme Court’s habeas corpus jurisprudence—limiting the scope of the federal writ while reducing the federal judiciary’s role overseeing the criminal justice systems. Seemingly, the Court gave little thought to whether this reduction in federal oversight should be accompanied by a greater measure of review on the part of state courts. The writ of habeas corpus, often referred to as the Great Writ, is the primary means of enforcing rights guaranteed under the United States Constitution and federal courts are the principal guardians of these rights. While commitment to …

Principles Of Governmental Immunity In Texas: The Texas Government Waives Sovereign Immunity When It Contracts - Or Does It Comment., Renna Rhodes

St. Mary's Law Journal

When the government causes injury through negligence or by breaching a contract, the injured party must face the obstacle of governmental immunity. The doctrine of governmental immunity can act as a total bar to recovery, especially in Texas. Over the years, governmental immunity increasingly has faced attack from courts and commentators. Some states, including Texas, have revised the common-law doctrine, allowing the government to be sued in certain situations. In Texas, principles of governmental immunity are often misconstrued. Which principles of governmental immunity apply to a particular situation in Texas depends on whether the defendant is a state entity or …

Third World Texas: Nafta, State Law, And Environmental Problems Facing Texas Colonias Symposium - The Environment And The United States-Mexico Border - Comment., David L. Hanna

St. Mary's Law Journal

The horrendous conditions along the Texas-Mexico border stem from factors on both sides of the Rio Grande River, including maquiladoras, migrant farms, poverty, poor land development, and bureaucracy. The adverse living conditions in Texas’s third world border region have resulted in immense health and safety problems. The United States government promised the North American Free Trade Agreement (NAFTA) would bring new environmental prosperity to the border region. Yet, aside from one sentence in the preamble, NAFTA does not directly address environmental protection. The United States and Mexico, as part of a series of environmental side agreements, created the Border Environmental …

Hopwood V. Texas: A Victory For Equality That Denies Reality - An Afterword Recent Development., Barbara Bader Aldave

St. Mary's Law Journal

Abstract Forthcoming.

Scientific Evidence Under Daubert., John H. Mansfield

St. Mary's Law Journal

The controversy over the proper standard for the admissibility of scientific evidence is an argument over the value of a jury trial compared with a bench trial or decisions by scientists. The argument has both a constitutional dimension in the provisions relating to a jury trial, compulsory process and due process, and a nonconstitutional dimension in the ordinary law of evidence. In the recent case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court took a different approach, basing its decision almost entirely on an interpretation of the particular words used in Rule 702 of the Federal …

Hopwood V. Texas: A Victory For Equality That Denies Reality Recent Development., Robert A. Lauer

St. Mary's Law Journal

Abstract Forthcoming.

The Rise And Fall Of The Chacoan State, John W. Ragsdale Jr

Faculty Works

No abstract provided.

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

On The Genealogy Of Moral Hazard, Tom Baker

All Faculty Scholarship

No abstract provided.

The Presumption Of Innocence: Patching The Tattered Cloak After Maryland V. Craig., Ralph H. Kohlmann

St. Mary's Law Journal

Over one hundred years ago, the United States Supreme Court recognized the importance of the presumption of innocence in a criminal justice system which is based on due process. The Court declared the presumption of innocence is “the undoubted law, axiomatic, and elementary, and its enforcements lies at the foundation … of our criminal law.” The Court’s changing view of the Sixth Amendment’s Confrontation Clause is the most recent contribution to the reduction in the practical value of the presumption of innocence. In Maryland v. Craig, the Court decided that while face-to-face confrontation forms the core of values furthered in …

The Anatomy Of Emtala: A Litigator's Guide., Alicia K. Dowdy, Gail N. Friend, Jennifer L. Rangel

St. Mary's Law Journal

The Emergency Medical Treatment and Active Labor Act (EMTALA) prohibits hospitals from inappropriately transferring or refusing medical care to persons with emergency medical conditions. EMTALA was passed in response to the practice of “dumping” seriously ill patients from private hospitals into public ones, to ensure all patients receive medical treatment in emergency situations. Plaintiffs have attempted to pursue EMTALA claims against non-hospital defendants, but courts have consistently disallowed such claims under the statute. By limiting the scope of its coverage to hospitals, EMTALA creates a situation unique from ordinary medical malpractice. Although hospitals may be held liable for negligent credentialing …

Texas Private Real Property Rights Preservation Act: A Political Solution To The Regulatory Takings Problem Comment., George E. Grimes Jr.

St. Mary's Law Journal

Increasing environmental regulation has resulted in an antiregulation backlash and the growth of a property rights movement. Unable to successfully use the courts to protect private property from diminution in value due to government regulations, property rights advocates have looked to the federal and state legislatures for assistance. This has led to some states and the United States Congress to introduce private property rights protection. This protection generally takes one of two forms. The first requires the government to assess the possible effect on property rights before enacting regulations. The second requires the government to compensate property owners for the …

Intellectual Property Pirates: Congress Raises The Stakes In The Modern Battle To Protect Copyrights And Safeguard The United States Economy Comment., Timothy D. Howell

St. Mary's Law Journal

Intellectual property pirates menace the industry by hijacking audio recordings, movies, television broadcasts, and software—posing an economic threat and accounting for billions of dollars in losses annually. This Comment examines legislative attempts to combat information piracy through criminalization of copyright infringement—focusing on the proposed Criminal Copyright Improvement Act of 1995 (Improvement Act). The Improvement Act contemplates expansion of criminal copyright infringement law, attempting to close the legal “loophole” exposed by United States v. LaMacchia, and providing a more effective means for deterring copyright piracy. Part II of this Comment provides a historical overview of United States copyright laws and introduces …

Nafta And The Environment: Dealing With Abnormally High Birth Defect Rates Among Children Of Texas-Mexico Border Towns Symposium - The Environment And The United States-Mexico Border - Comment., Kelly L. Reblin

St. Mary's Law Journal

Along the 868-mile Texas-Mexico border thousands of young women live in fear as deadly birth defects with unknown causes threaten the lives of their unborn children. A total of ninety cases of the birth defect anencephaly, meaning the fetus has no brain, were reported in the fourteen Texas border counties between 1986 and 1991. The cause of these birth defects has yet to be determined officially; yet, researchers and residents along the Texas-Mexico border blame poor environmental conditions caused by the maquiladora industry and inadequate sewage facilities. The Texas Department of Health and the Centers for Disease Control investigated the …

Giving Texas Lawyers Their Dues: The State Bar's Liability Under Hudson And Keller For Political And Ideological Activities., Ralph H. Brock

St. Mary's Law Journal

The State Bar must provide information for members to assess the propriety of mandatory dues and establish a procedure for members to challenge improper expenditures, however, the Texas State Bar provides no such procedure. Although most states have unified bars, opposition to compulsory bar membership is steady—due largely, to using membership dues to lobby state legislatures in favor of positions which some members may oppose. Chicago Teachers Union v. Hudson and Keller v. State Bar of California are the culmination of labor union and unified bar cases which uphold compulsory membership but establish constitutional limits on the uses of mandatory …

Speaking The Language Of Exclusion: How Equal Protection And Fundamental Rights Analyses Permit Language Discrimination Comment., Donna F. Coltharp

St. Mary's Law Journal

In the summer of 1995, the en banc Texas Court of Criminal Appeals in Flores v. State upheld a lower court’s ruling to give a drunk-driving (DWI) offender a year in prison as opposed to probation. The trial judge denied the defendant probation due to his inability to speak English. The county in which the defendant was arrested and convicted did not provide a DWI rehabilitation program in Spanish, leading the judge to determine the defendant would not benefit from probation. In his appeal, Mr. Flores claimed the lower court violated his equal protection and due process rights under the …

Changing The Nature Of Corporate Representation: Attorney Liability For Aiding And Abetting The Breach Of Fiduciary Duty Comment., Stanley Pietrusiak Jr.

St. Mary's Law Journal

In 1983, the American Bar Association (ABA) comprehensively defined corporate counsel’s ethical duties in situations where a corporate officer engages in conduct which could substantially harm the organization. In such cases, the nature of the corporate attorney’s duties depends on whether the officer’s conduct is illegal or whether the officer made a policy decision which falls short of illegality. Rule 1.13 of the Model Rules of Professional Conduct imposes the duty on corporate counsel to take steps to stop corporate officers from engaging in illegal conduct which is likely to result in substantial injury to the organization. Conversely, counsel is …