Open Access. Powered by Scholars. Published by Universities.®
- Publication Year
Articles 61 - 90 of 395
Full-Text Articles in Military, War, and Peace
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
St. Mary's Law Journal
The right to a trial by jury is meaningless without an effective voir dire. Recurring tort reform, rapid technological advancements, immediate access to media coverage of incidents that give rise to litigation have greatly expanded. Consequentially, courts are faced with the prospect that potential jurors’ opinions and attitudes have been tainted. In addition to these issues, trial courts display significant interest in promptly expediting the advancement of their dockets. Voir dire is an essential element of trial strategy. Voir dire allows counsel to establish rapport with potential jurors, introduce them to the issues and facts of the case, and identify …
Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling
Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling
St. Mary's Law Journal
“Extreme [attorney] misconduct may warrant an extreme remedy.” Fee forfeiture certainly constitutes an extreme remedy, at least compared to the ordinary remedy for violation of a legal duty. But neither the degree to which the remedy is extreme nor how extreme the misconduct must first be before the forfeiture becomes appropriate is apparent in light of the Texas Supreme Court’s decision in Burrow v. Arce. Understanding the confusion which has arisen with regard to Burrow’s impact depends in large measure on a thorough evaluation of (1) the basis for the court’s determinations relating to forfeiture, (2) the sources from which …
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
St. Mary's Law Journal
When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit …
Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton
Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton
St. Mary's Law Journal
Pleas to the jurisdiction have been part of Texas jurisprudence since shortly after Texas became a state. The resulting confusion over the procedure and standards to be employed in resolving a plea was partially alleviated by the Texas Supreme Court’s decision in Texas Department of Parks and Wildlife v. Miranda. From a number of reports from Texas’s reviewing courts, however, it is evident the courts continue to struggle with the plea. Currently there are no established procedural rules to assist with the resolution of a plea to the jurisdiction. Thus, procedures vary from court to court and case to case. …
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
St. Mary's Law Journal
Civil jury trials in America have been declining at a steady rate for the last thirty years. This is a well-documented trend. If the trend continues, within the foreseeable future, civil jury trials in American may eventually become extinct. Jury trials have been central to justice in America and its states since their inception. Their importance has been stated as bringing accountability to the law and to society. As all persons, even the powerful and wealthy ones, are accountable under the law. Yet, as important as juries and jury trials are to the health of justice in America, the civil …
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
St. Mary's Law Journal
Patents are grants issued by the United States Patent and Trademark Office (USPTO) which confer upon the holder, the patentee, patent rights to such intellectual property as inventions, technologies, and processes. Patent rights include the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” Once the USTPO has granted a patent, the inventor may market the product. Patentees who do not have the funds or time to market the product may profit by conveying the legal rights conferred by the patent to other …
Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz
Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz
St. Mary's Law Journal
The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …
Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald
Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald
St. Mary's Law Journal
Attorney loyalty to clients is considered a cornerstone of the attorney-client relationship. Yet, loyalty is underexplored, misunderstood, and the subject of heated discord. Advocates of client-centered loyalty and their opponents both fail to provide a compelling accounting of loyalty to clients and its consequences. Leaving loyalty in limbo is an unacceptable state of affairs. The legal profession bears the continuous burden of accounting for its own practices. Because the Bar cannot assert broad client-centered loyalty as self-explanatory, the burden of disproving loyalty shifts to the critics. Critics of broad loyalty to clients are not helping advance the discourse by advocating …
Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard
Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard
St. Mary's Law Journal
The Texas Supreme Court has failed to provide a bright-line test in determining whether reliance disclaimers are enforceable. A reliance disclaimer is a provision in a contract that disclaims all extra-contractual representations and provides that the contracting parties are not relying on any such representations. By including a reliance disclaimer, a contracting party may be attempting to immunize itself from liability for false statements made during negotiations. Even if a contracting party’s misrepresentations or non-disclosures were made with fraudulent intent, Texas law gives contracting parties broad freedom to contract around misrepresentation claims. In Forest Oil Corp. v. McAllen, the Texas …
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
St. Mary's Law Journal
The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …
Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon
Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon
St. Mary's Law Journal
In 2003 and 2008, the Texas Rule of Appellate Procedure (TRAP) 47 was amended. TRAP 47 is the rule which governs the issuance, citation, and precedential value of unpublished and memorandum opinions. The 2003 amendment was designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and authorizing memorandum opinions in place of unpublished opinions. Despite its intention, the 2003 amendment failed to make civil case law more readily available. This is because such new opinions are only available via electronic repository, such as Westlaw or Lexis. As a result, to completely …
The Texas Supreme Court's Erroneous Doctrine Of Implied Appellate Jurisdiction., Charles R. Flores
The Texas Supreme Court's Erroneous Doctrine Of Implied Appellate Jurisdiction., Charles R. Flores
St. Mary's Law Journal
A Texas statute gave final appellate jurisdiction over cases not to the state supreme court but to the intermediate courts of appeals. After losing at the appellate level, one of the parties in Eichelberger v. Eichelberger appealed to the state supreme court despite the statute. But because the court of appeals decision conflicted with a United States Supreme Court decision, the Texas Supreme Court held its jurisdiction should be implied. Though legal commentators declared the decision an abrupt departure from standards for judicial decisions, they postulated it would be invoked so infrequently to do no lasting harm to Texas jurisprudence. …
In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione
In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione
St. Mary's Law Journal
Following the Texas Supreme Court decision in Low v. Henry, the issue of whether an attorney may be liable for filing a “groundless pleading” has come to the forefront of Texas jurisprudence. This recent decision ought to pique Texas attorneys’ attention. In reprimanding egregious attorney conduct, did the Texas Supreme Court’s tightening of the Texas Rules of Civil Procedure increase the duties and responsibilities of all Texas attorneys by establishing what may amount to pre-suit discovery? Yet, courts presume pleadings and motions are filed in good faith, and the party seeking sanctions bears the burden of rebutting this presumption. The …
A Marginal Tax: The New Franchise Tax In Texas Comment., David A. Vanderhider
A Marginal Tax: The New Franchise Tax In Texas Comment., David A. Vanderhider
St. Mary's Law Journal
Taxation has long been a point of contention for both individuals and businesses. Primarily, taxation serves as a convenient and calculated method of allocating precious resources to areas in need. Although many states use property and income taxes as the preferred methods for funding these programs, Texas has a constitutional restriction on state taxation of individuals’ incomes. This means Texas has largely relied on property and business taxes to fund these programs. In 1991, while trying to avoid unconstitutional taxes on individuals’ incomes, the Texas Legislature adopted a franchise tax which taxed Texas businesses according to their capital. In 2006, …
The Competency Of The Sham Affidavit As Summary Judgment Proof In Texas., David F. Johnson, Joseph P. Regan
The Competency Of The Sham Affidavit As Summary Judgment Proof In Texas., David F. Johnson, Joseph P. Regan
St. Mary's Law Journal
The United States Court of Appeals for the Fifth Circuit first addressed the sham affidavit theory in Kennett-Murray Corp. v. Bone. This is the doctrine regarding assertions made by affidavit in order to prove summary judgment which are contrary to prior statements given, usually during a deposition. More recently, the Fifth Circuit has used the theory to strike affidavits where it found a sufficient inconsistency existed. This Court has also applied the sham affidavit theory to any prior sworn testimony, not just deposition testimony. The adoption of this theory overturned the precedent which stated a factual issue existed where a …
A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer
A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer
St. Mary's Law Journal
Since close to half the country’s marriages end in divorce, marriage dissolution is quite a lucrative business for attorneys. Also, fewer people are entering marriage in the first place. Fewer marriages combined with more children born out of wedlock create multitudinous legal problems and family disputes centering around those children. In addition to initial divorce filings and suits affecting the parent-child relationship, dissolution of marriage cases often creates additional litigation down the road. As a solution to the problems caused by the expense and toil of this litigation, alternative dispute resolution (ADR) offers several options for family disputants. Two popular …
It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland
It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland
St. Mary's Law Journal
In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …
Surreptitious Recording By Attorneys: Is It Ethical., Carol M. Bast
Surreptitious Recording By Attorneys: Is It Ethical., Carol M. Bast
St. Mary's Law Journal
Ethical rules generally set forth commonly held ethics principles in broad terms which usually generate little debate. What has generated a great deal of debate is whether it is ethical for an attorney to record a conversation. The American Bar Association’s (ABA) view of the issue has shifted over the years. Originally, the practice was held to be unethical except for certain well-defined exceptions involving government attorneys. The 2001 ABA opinion officially withdrew the original opinion allowing attorneys to secretly record a conversation with a non-client where it is not illegal. States’ opinions as to whether conversation recording is ethical …
Ethical Plea Bargaining Under The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson
Ethical Plea Bargaining Under The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson
St. Mary's Law Journal
Plea bargaining is such an essential component of the administration of justice that disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. Even though 95% of felony criminal cases nationwide are resolved through plea bargaining, there are no specific ethical rules governing the practice. The exhortation in article 2.01 of the Texas Code of Criminal Procedure states it is the primary duty of all prosecuting attorneys to see that justice is done, rather than merely convicting. In order to determine the ethical boundaries of plea bargaining, …
Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications Essay., Bill Piatt, Paula Dewitte
Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications Essay., Bill Piatt, Paula Dewitte
St. Mary's Law Journal
In general, attorneys must not reveal confidential information relating to the representation of their clients. Attorneys must make reasonable efforts to ensure the attorneys they supervise, as well as their nonlawyer employees, maintain client confidences. In modern days, technology virtually guarantees attorneys and clients will communicate electronically. While most attorneys would not knowingly disclose client confidences, there is a growing problem of unintended disclosure through electronic means. On a practical level, maintaining confidence is of utmost importance to both attorneys and clients. Attorneys may believe they are using good faith and competent, reasonable actions to protect their clients’ information from …
Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv
Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv
St. Mary's Law Journal
The practicing attorney must have a complete understanding of legal malpractice liability. Managing this risk can be a precarious responsibility when the law is not clearly defined. This is compounded by the steady erosion of attorney-client privity barriers making it easier for third party non-clients to sue lawyers for legal malpractice. This is the current state of matters in Texas since the Texas Supreme Court decided Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. on May 5, 2006. The Belt court determined personal representatives of an estate may bring a malpractice claim against the decedent’s attorneys. The Belt court was …
The All-Woman Texas Supreme Court: The History Behind A Brief Moment On The Bench., Alice G. Mcafee
The All-Woman Texas Supreme Court: The History Behind A Brief Moment On The Bench., Alice G. Mcafee
St. Mary's Law Journal
On the surface, there is nothing particularly noteworthy about the case of Johnson v. Darr, and, in fact it was not the merits of the case that made the headlines. It was the makeup of the tribunal. Long before women in Texas were even granted the right to serve on juries and before any woman ever served as a judge on any of the lower Texas courts, the judges appointed to hear the case of Johnson v. Darr were all women. This was the first time a woman was appointed in any capacity to serve on the Texas judiciary and …
The Castle Doctrine: An Expanding Right To Stand Your Ground Comment., Denise M. Drake
The Castle Doctrine: An Expanding Right To Stand Your Ground Comment., Denise M. Drake
St. Mary's Law Journal
Recently, the Texas Legislature passed Senate Bill 378 effectively terminating a person’s “duty to retreat” when confronted with a criminal attack of either great bodily injury or death. Complicated issues of innocence and guilt arise when one employs deadly force as a means of self-defense. Furthermore, tragic mistakes occur when people preemptively resort to deadly force before the realization of such a threat. Societal questions still exist concerning the possibility that self-defense will turn into self-justice. Critics argue the law encourages a vigilante society, substituting law enforcement help with self-justice. Conversely, supporters believe the bill serves as a deterrent from …
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
St. Mary's Law Journal
The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …
Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond
Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond
St. Mary's Law Journal
The last two decades have witnessed the creation of a perilous liability environment for lawyers and law firms. Most discussions of lawyer liability begin with “legal malpractice,” a term which typically describes professional negligence. In a malpractice case, the plaintiff must prove the lawyer owed them a duty, the duty was breached, and the breach was the proximate cause of actual damages. The lawyer’s duty flows from the attorney-client relationship. But, the attorney-client relationship is also a fiduciary one, and lawyers may be sued for breach of the fiduciary duty. While these two causes of action are usually alleged simultaneously, …
Spam (Supremacy Clause, Public Forums, And Mailings): The Fifth Circuit's Interpretation Of The Can-Span Act In White Buffalo V. University Of Texas Comment., Jason A. Smith
St. Mary's Law Journal
Unsolicited email advertisement, spam, has been a problem of the internet since its inception. In the face of this onslaught, users have fought back with a variety of methods, involving filtering software. Users have also resorted to the courts, suing spammers under the “trespass to chattels” theory. Not all courts have agreed with this theory, as there is often little evidence of the owner’s use of their servers being adversely affected by a digital trespass. While the states were the first to address overwhelming amount of spam, Congress address the issue with the first nationwide anti-spam legislation, the CAN-SPAM Act. …
Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney
Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney
St. Mary's Law Journal
This Comment seeks to provide practical guidance in evaluating ethical issues for Texas attorneys considering representing a relative. Attorneys must always look to the relevant rules of professional conduct, advisory opinions, and case law to evaluate whether or not representation adheres to ethical guidelines. The primary sources of guidance are the Texas Disciplinary Rules of Professional Conduct (Texas Disciplinary Rules), advisory opinions from the Supreme Court of Texas Professional Ethics Committee (Texas Professional Ethics Committee), and Texas case law. Part II of this Comment discusses the history of professional responsibility, characteristics of representing family members, and common ethical problems arising …
Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik
Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik
St. Mary's Law Journal
Individuals who are not United States citizens and participate in violent or severe criminal activity are likely to be deported and become inadmissible for life. But noncitizens can also be deported for minor criminal activity which does not cause harm or serious damage. In such cases, deportation is an extreme punishment out of proportion to the offense. Unauthorized use of a motor vehicle (UUMV) is an example of a crime which can be committed without serious harm or damage. The Fifth Circuit regularly sustains decisions of lifetime reentry ban for noncitizens convicted of UUMV. Under immigration law, “aliens” who are …
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
St. Mary's Law Journal
In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …
Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo
Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo
St. Mary's Law Journal
There is a nationwide debate on whether punitive damages should be insurable. Insuring punitive damages causes courts concern regarding whether a wrongdoer escapes punishment by having the insurer pay for damages attributable to the wrongdoer’s egregious conduct. The United States Court of Appeals for the Fifth Circuit noted Texas’ public policy does not justify interference with private insurance contracts. The Court determined Texas allows liability insurance contracts to cover punitive damages and declared the inquiry ended. But, in the years since this determination, many Texas appellate courts have contracted the Fifth Circuit’s holding. The shifting discussion among Texas appellate courts …