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Full-Text Articles in Law

Food Choice Is A Fundamental Liberty Right, David J. Berg Jun 2021

Food Choice Is A Fundamental Liberty Right, David J. Berg

Journal of Food Law & Policy

"[P]laintiffs do not have a fundamental right to obtain any food they wish." "When did we lose our right to buy whatever food we want directly from farmers and assorted food producers, outside of the regulatory system of permits and inspections?" For millennia, humans either caught or raised their own food or purchased it from local farmers or shopkeepers; however they obtained their food, they knew where it came from. In fact, obtaining one's food directly from the farmer who grew it is one of the most traditional economic practices that there can be. But with the industrial age came …


Animal Legal Defense Fund V. Otter: Industrial Food Production Simply Is Not A Private Matter, Lucy L. Holifield Jun 2021

Animal Legal Defense Fund V. Otter: Industrial Food Production Simply Is Not A Private Matter, Lucy L. Holifield

Journal of Food Law & Policy

About half of the states have either passed or attempted to pass laws aimed at stifling criticism and exposure of factory farms throughout the country. This unwanted exposure is often the result of undercover reporters gaining access to the interior of meat-producing entities by seeking and obtaining employment. Their reports often expose filthy and dangerous conditions, substantial animal abuse, and the incorporation of unfit animal products into the public's food supply.


Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla Apr 2020

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …


Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank Jan 2019

Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank

Faculty Articles and Other Publications

Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …


The Limited Standing Rule Of Chapter 380: Substantial Interests Lost In The Process, Jaimie A. Ross Aug 2018

The Limited Standing Rule Of Chapter 380: Substantial Interests Lost In The Process, Jaimie A. Ross

Florida State University Journal of Land Use and Environmental Law

No abstract provided.


Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs Jan 2017

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …


The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore Jan 2014

The Extraterritorial Application Of The Fifth Amendment: A Need For Expanded Constitutional Protections., Guinevere E. Moore, Robert T. Moore

St. Mary's Law Journal

Since 2010, there have been forty-three cases—and ten deaths—involving the use of deadly force by United States agents against Mexican nationals along the border. Currently, the official policy is that officers may still use deadly force where they “reasonably believe”—based upon the totality of the circumstances—that they are in “imminent danger” of death or serious injury. Officers were found reasonable in using deadly force in situations as mundane as young boys throwing rocks. In light of these actions, the Mexican government has raised serious concerns about the disproportionate use of force by United States agents. The question now raised is …


Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts Jan 2012

Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts

St. Mary's Law Journal

The Texas Responsible Third Party (RTP) statute was amended in 2003 to give defendants the opportunity to have the jury apportion responsibility for the plaintiff’s damages to persons who were not joined in the lawsuit. A defendant could achieve this result by designating a “responsible third party.” Plaintiffs may often join responsible third parties as additional defendants. Under such situations, all culpable parties are before the court, defending themselves, and accountable to the plaintiff for their percentage of responsibility. When the statute worked in this fashion it achieved “a carefully constructed scheme balancing the interests of both defendants and claimants.” …


The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs Jan 2011

The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs

St. Mary's Law Journal

The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …


Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert Jan 2011

Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert

St. Mary's Law Journal

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …


Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier Jan 2011

Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier

St. Mary's Law Journal

Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …


Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust Jan 2009

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 …


Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark Jan 2009

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 …


How Do We Deal With This Mess? A Primer For State And Local Governments On Navigating The Legal Complexities Of Debris Issues Following Mass Disasters, Ryan M. Seidemann, Megan K. Terrell, Christopher D. Matchett Jan 2007

How Do We Deal With This Mess? A Primer For State And Local Governments On Navigating The Legal Complexities Of Debris Issues Following Mass Disasters, Ryan M. Seidemann, Megan K. Terrell, Christopher D. Matchett

ExpressO

The devastation wrought by the 2005 hurricane season brought into bold relief the need for comprehensive debris management plans in the United States. As cleanup efforts commenced following Hurricane Katrina, it became abundantly apparent that the local governments were not prepared to deal with the massive scope of the debris problem.

Disasters will occur. It is not a matter of if, but a matter of when. The entire nation is at risk of being struck by some type of disaster at some time. The best way to deal with the outfall from these disasters is to be prepared for them …


Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez Jan 2001

Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez

St. Mary's Law Journal

Texas’s use of the Texas Assessment of Academic Skills (TAAS) test as an accountability program has had numerous negative and far-reaching effects on minorities. Today, students in Texas public schools first take the TAAS test in the third grade. Students continue to take a form of the TAAS test each year, with the exit-level assessment initially given in the eleventh grade. Students must pass all four sections–Mathematics, English, Science, and Social Studies–in order to graduate and receive their high school diploma. Although devised to effectively motivate students, schools, and teachers with the goal of enhancing educational standards, the TAAS test …


The Politics Of Property Rights, John D. Echeverria Jan 1997

The Politics Of Property Rights, John D. Echeverria

Oklahoma Law Review

No abstract provided.


The Presumption Of Innocence: Patching The Tattered Cloak After Maryland V. Craig., Ralph H. Kohlmann Jan 1996

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 Supreme Court Takes A Weapon From The Drug War Arsenal: New Defenses To Civil Drug Forfeiture., Scott Alexander Nelson Jan 1994

The Supreme Court Takes A Weapon From The Drug War Arsenal: New Defenses To Civil Drug Forfeiture., Scott Alexander Nelson

St. Mary's Law Journal

This Comment discusses the history and development of forfeiture law—emphasizing the misnomer of “guilty property”—and addresses the lack of constitutional safeguards in the civil forfeiture statutes. It outlines prospective constitutional defenses announced by the United States Supreme Court, emphasizing the Fifth Amendment guarantee of due process, the Eighth Amendment’s Excessive Fines Clause, and the “innocent owner” defense. The federal statute authorizing civil forfeiture, 21 U.S.C. § 881 (Forfeiture Statute), was initially enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Comprehensive Forfeiture Act of 1984 amended the statute to impose forfeiture on real property …


Transracial Adoption In Texas: Should The Best Interests Standard Be Color-Blind., Jo Beth Eubanks Jan 1993

Transracial Adoption In Texas: Should The Best Interests Standard Be Color-Blind., Jo Beth Eubanks

St. Mary's Law Journal

Legislative amendments must go further than limiting race from being a primary factor in adoptions; amendments must eliminate race as an acceptable factor. Diverging opinions of “race matching” in foster care and adoption exist. Administrative policies regulating adoption hold that same-race placement, between the adoptive parent and child, is a primary consideration when awarding custody in Texas. Basing child placement on the race or ethnicity of the parties involved raises serious constitutional concerns. The best interest standard is the predominant method in determining child placement, for both custody and adoption proceedings. The premise of the best interest standard is prioritization …


Conflicts Between Water Rights Administration And Water Quality Protection, Jan D. Laitos Jun 1987

Conflicts Between Water Rights Administration And Water Quality Protection, Jan D. Laitos

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

43 pages.


The National Park System And Development On Private Lands: Opportunities And Tools To Protect Park Resources, Michael Mantell Sep 1986

The National Park System And Development On Private Lands: Opportunities And Tools To Protect Park Resources, Michael Mantell

External Development Affecting the National Parks: Preserving "The Best Idea We Ever Had" (September 14-16)

34 pages.

Contains footnotes.


A New Twist For Texas Lemon Owners., Ayala Alexopoulos Jan 1985

A New Twist For Texas Lemon Owners., Ayala Alexopoulos

St. Mary's Law Journal

Twenty-five percent of the consumers with car warranty problems are dissatisfied with the complaint-handling process in the automobile industry and the result of their grievances. In response to the frustrations of defective car owners, Texas, along with many other states, passed a “lemon law” providing more definitive relief for consumer. Lemon laws provide a clearly defined cause of action against the manufacturer and provide the consumer with a low-cost, readily available mechanism for resolving their disputes. Most states’ lemon laws require the consumer to resort to arbitration provisions before initiating a court action if a manufacturer sets up a dispute …


A Synopsis Of The Federal Juvenile Delinquency Act., William S. Sessions, Faye M. Bracey Jan 1983

A Synopsis Of The Federal Juvenile Delinquency Act., William S. Sessions, Faye M. Bracey

St. Mary's Law Journal

The Juvenile Justice and Delinquency Prevention Act of 1974 (Act) was passed by the United States Congress on September 7, 1974. The Act amended the Federal Juvenile Delinquency Act (FJDA) which had been virtually unchanged since its enactment in 1938. The Act sets up a procedural framework for the treatment of minors who are within the jurisdictional reach of a federal court due to the commission of an act which contradicts a federal criminal statute. With a thorough understanding of the original FJDA and its amendments, benefits, required procedures, and a juvenile’s constitutional rights, counsel for a juvenile offender in …


Administrative Law: Due Process Requirements Of Notice And Hearing Apply To Native Claims Under Administrative Procedure Act; Civil Rights: Challenging Tribal Membership Ordinance; Criminal Law: Nor Prejudice To Indian Defendant Sentenced Under State Due To Additional Or Alternative Fina Authorized By Federal Statute; Due Process: Tribal Elections And The Indian Civil Rights Act; Environment: Standing Of Non-Indians To Challenge Validity Of Coal Leases On Indian Land; Evidence: Indian Concept Of "Toka" As Concerning Issues Of Provocation And Justification; Indian Civil Rights Act: Residency Requirements For Tribal Political Office Upheld; Indian Lands: Quiet Title Action By Indian Allottees Against Railroad Holding Easement In The Nature Of A Limited Fee; Jurisdiction: Adoption Where All Parties Are Residents Of An Indian Reservation; Jurisdiction: New Mexico State Constitution As Affecting Adjudication Of Indian Water Rights; Taxation: State Right Of Taxation On Reservations When Commerce Effectuated Between Indians And Non-Indians Jan 1976

Administrative Law: Due Process Requirements Of Notice And Hearing Apply To Native Claims Under Administrative Procedure Act; Civil Rights: Challenging Tribal Membership Ordinance; Criminal Law: Nor Prejudice To Indian Defendant Sentenced Under State Due To Additional Or Alternative Fina Authorized By Federal Statute; Due Process: Tribal Elections And The Indian Civil Rights Act; Environment: Standing Of Non-Indians To Challenge Validity Of Coal Leases On Indian Land; Evidence: Indian Concept Of "Toka" As Concerning Issues Of Provocation And Justification; Indian Civil Rights Act: Residency Requirements For Tribal Political Office Upheld; Indian Lands: Quiet Title Action By Indian Allottees Against Railroad Holding Easement In The Nature Of A Limited Fee; Jurisdiction: Adoption Where All Parties Are Residents Of An Indian Reservation; Jurisdiction: New Mexico State Constitution As Affecting Adjudication Of Indian Water Rights; Taxation: State Right Of Taxation On Reservations When Commerce Effectuated Between Indians And Non-Indians

American Indian Law Review

No abstract provided.