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Articles 1 - 30 of 58
Full-Text Articles in Legal Remedies
Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit’S Kickback Jurisprudence After United States V. Nora, John J. Locurto
Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit’S Kickback Jurisprudence After United States V. Nora, John J. Locurto
St. Mary's Law Journal
Many criminal statutes require willful misconduct, yet willfulness remains an elusive concept. Its meaning and application depend as much on the outcome a court desires as the definition or legal standard a court claims to apply. Ambiguity in the required mens rea is an age-old problem with a venerable pedigree in the circuits and Supreme Court. This article considers anew the struggle to define “willfully” as that term is used in the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b, one of the federal government’s key weapons against health care fraud.
When it decided United States v. Nora and reversed the …
The Aoc In The Age Of Covid—Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel
The Aoc In The Age Of Covid—Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel
St. Mary's Law Journal
The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.
Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …
Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren
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
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 …
Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.
Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.
St. Mary's Law Journal
The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people.
This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused …
Reconceiving Ethics For Judicial Law Clerks, Gregory Bischoping
Reconceiving Ethics For Judicial Law Clerks, Gregory Bischoping
St. Mary's Journal on Legal Malpractice & Ethics
Judicial law clerks hold a unique and critical position in our legal system. They play a central part in the functioning of the judiciary, oftentimes writing the first draft of their judge’s opinions and serving as their trusted researcher and sounding board. Moreover, they are privy to the many highly confidential processes and private information behind the important work of the judiciary. It stands to reason the comprehensive set of ethical duties that bind the world of lawyers and judges should also provide guidance for judicial law clerks. The most important among those ethics rules is a duty of confidentiality. …
Resolving The Anders Dilemmas: How & Why Texas Should Abandon The Anders Procedure, Michael J. Ritter
Resolving The Anders Dilemmas: How & Why Texas Should Abandon The Anders Procedure, Michael J. Ritter
St. Mary's Journal on Legal Malpractice & Ethics
When an indigent defendant has a right to counsel for an appeal, and counsel believes the appeal is wholly frivolous, Texas has adopted the Anders v. California procedure that permits counsel to withdraw from representation and argue to the appellate court why their client’s appeal is wholly frivolous. This Article argues that, either by a change to the disciplinary rules or by judicial decision, Texas should abandon the Anders procedure as other states have. Doing so will promote the integrity of the right to counsel, avoid numerous conflicts and dilemmas created by the Anders procedure, and advance judicial efficiency and …
Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso
Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso
St. Mary's Law Journal
Abstract forthcoming.
House Bill 3: An Iou Texas Public Schools And Communities Of Color Cannot Afford, Candace L. Castillo
House Bill 3: An Iou Texas Public Schools And Communities Of Color Cannot Afford, Candace L. Castillo
The Scholar: St. Mary's Law Review on Race and Social Justice
A history of school finance litigation and legislation shows there are inherent and structural problems in Texas’s education finance system. Like many government and social structures, the Texas school finance system is built to benefit school districts that have greater access to wealth to begin with and creates inequalities between rich and poor populations as well as between people of color and Caucasians. House Bill 3 went into effect in 2019 and promises improvements to “recapture” calculations, increases in certain allotments, as well as salary increases for some Texas teachers. Some changes to education finance were sorely needed such as …
The Termination Of Parental Rights In Texas: The Long Run Cut Short For Parents In Bexar County, Gabriel A. Narvaez
The Termination Of Parental Rights In Texas: The Long Run Cut Short For Parents In Bexar County, Gabriel A. Narvaez
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
The Militia: A Definition And Litmus Test, Marcus Armstrong
The Militia: A Definition And Litmus Test, Marcus Armstrong
St. Mary's Law Journal
The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the …
“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo
“We” The Jury: The Problem Of Peremptory Strikes As Illustrated By Flowers V. Mississippi, Kayley A. Viteo
St. Mary's Law Journal
Abstract forthcoming.
When Mental Health Meets “The One-Armed Man” Defense: How Courts Should Deal With Mccoy Defendants, Farid Seyyedi
When Mental Health Meets “The One-Armed Man” Defense: How Courts Should Deal With Mccoy Defendants, Farid Seyyedi
St. Mary's Journal on Legal Malpractice & Ethics
The Supreme Court’s opinion in McCoy v. Louisiana held that a defendant has a constitutional right to insist their attorney not concede guilt as to any element of an offense, even if doing so is the only reasonable trial strategy to give the defendant a chance at life imprisonment instead of the death penalty. Under McCoy’s holding, a defendant can insist on maintaining their innocence—even in the face of overwhelming evidence—and force their attorney to pursue a defense that will land them on death row. The Supreme Court’s holding makes clear that a strategic concession of guilt at trial—over …
Ethics In An Echo Chamber: Legal Ethics & The Peremptory Challenge, Kayley A. Viteo
Ethics In An Echo Chamber: Legal Ethics & The Peremptory Challenge, Kayley A. Viteo
St. Mary's Journal on Legal Malpractice & Ethics
Abstract forthcoming.
No Path To Redemption: Evaluating Texas’S Practice Of Sentencing Kids To De Facto Life Without Parole In Adult Prison, Lindsey Linder, Justin Martinez
No Path To Redemption: Evaluating Texas’S Practice Of Sentencing Kids To De Facto Life Without Parole In Adult Prison, Lindsey Linder, Justin Martinez
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
It Is Time To Get Back To Basics On The Border, Donna Coltharp
It Is Time To Get Back To Basics On The Border, Donna Coltharp
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
Picking The Lock: A Proposal For A Standard Fee Waiver In Texas For Identification Documents, Gregory Zlotnick
Picking The Lock: A Proposal For A Standard Fee Waiver In Texas For Identification Documents, Gregory Zlotnick
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
Must A Friend Indeed Reveal A Friend’S Misdeed? Exploring The Merits Of A Friendship Privilege, Michael D. Moberly
Must A Friend Indeed Reveal A Friend’S Misdeed? Exploring The Merits Of A Friendship Privilege, Michael D. Moberly
St. Mary's Law Journal
Abstract forthcoming.
Restoring The Presumption Of Innocence: Protecting A Defendant’S Right To A Fair Trial By Closing The Door On 404(B) Evidence, Aaron Diaz
St. Mary's Law Journal
Congress enacted the Federal Rules of Evidence to govern evidentiary procedures and “eliminate unjustifiable expense and delay.” In criminal cases, for example, Federal Rule of Evidence 404(b) seeks to prevent prosecutors from improperly introducing a defendant’s past misdeeds. Nevertheless, prosecutors often attempt to introduce a defendant’s past misconduct to suggest that a defendant has a propensity to commit crimes, which is improper character evidence. Unsurprisingly, 404(b) is one of the most litigated evidence rules and has generated more published opinions than any other subsections of the Rules. And despite efforts to amend Rule 404(b), the rule has remained virtually untouched. …
Should Judges Have A Duty Of Tech Competence?, John G. Browning
Should Judges Have A Duty Of Tech Competence?, John G. Browning
St. Mary's Journal on Legal Malpractice & Ethics
In an era in which lawyers are increasingly held to a higher standard of “tech competence” in their representation of clients, shouldn’t we similarly require judges to be conversant in relevant technology? Using real world examples of judicial missteps with or refusal to use technology, and drawn from actual cases and judicial disciplinary proceedings, this Article argues that in today’s Digital Age, judicial technological competence is necessary. At a time when courts themselves have proven vulnerable to cyberattacks, and when courts routinely tackle technology related issues like data privacy and the admissibility of digital evidence, Luddite judges are relics that …
Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan
Ethical And Aggressive Appellate Advocacy: The Decision To Petition For Certiorari In Criminal Cases, J. Thomas Sullivan
St. Mary's Law Journal
Over the past six decades, United States Supreme Court decisions have dramatically reshaped the criminal justice process to provide significant protections for defendants charged in federal and state proceedings reflecting a remarkable expansion of due process and specific constitutional guarantees. For criminal defendants seeking relief based on recognition of new rules of constitutional criminal procedure, application of existing rules or precedent to novel factual scenarios, or in some cases, enforcement of existing precedent, obtaining relief requires further action on the Court’s part. In those situations, the Court’s exercise of its certiorari jurisdiction is the exclusive remedy offering an avenue for …
Lessons Learned, Lessons Offered: Creating A Domestic Violence Drug Court, Judge Rosie Speedlin Gonzalez, Dr. Stacy Speedlin Gonzalez
Lessons Learned, Lessons Offered: Creating A Domestic Violence Drug Court, Judge Rosie Speedlin Gonzalez, Dr. Stacy Speedlin Gonzalez
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa
Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming.
Superseding Money Judgments In Texas: Four Proposed Reforms To Help The Business Litigant And To Further Improve The Texas Civil Justice System, James Holmes
St. Mary's Law Journal
Abstract forthcoming.
Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser
Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser
St. Mary's Law Journal
Abstract forthcoming
Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson
Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson
St. Mary's Law Journal
Abstract forthcoming
Article Iii Courts V. Military Commissions: A Comparison Of Protection Of Classified Information And Admissibility Of Evidence In Terrorism Prosecutions, Mohamed Al-Hendy
Article Iii Courts V. Military Commissions: A Comparison Of Protection Of Classified Information And Admissibility Of Evidence In Terrorism Prosecutions, Mohamed Al-Hendy
St. Mary's Law Journal
Abstract forthcoming
Challenging Voting Rights And Political Participation In State Courts, Irving Joyner
Challenging Voting Rights And Political Participation In State Courts, Irving Joyner
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract forthcoming
Regulating Retirement: Understanding The Impact Of New Best Interest And Fiduciary Standards On Retail Investors, Michael Lichtmacher
Regulating Retirement: Understanding The Impact Of New Best Interest And Fiduciary Standards On Retail Investors, Michael Lichtmacher
St. Mary's Law Journal
Abstract forthcoming
Texas, The Death Penalty, And Intellectual Disability, Megan Green
Texas, The Death Penalty, And Intellectual Disability, Megan Green
St. Mary's Law Journal
Abstract forthcoming