Law Commons^™

The New Texas Business Corporation Act Merger Provisions., Curtis W. Huff

St. Mary's Law Journal

Abstract Forthcoming.

Interference With Prospective Civil Litigation By Spollation Of Evidence: Should Texas Adopt A New Tort., Philip A. Lionberger

St. Mary's Law Journal

Texas courts should adopt a tort for spoliation of evidence. Spoliation of evidence is the tampering with, interference with, loss of, or destruction of evidence. Spoliation of evidence is a serious legal problem because it increases a litigant’s difficulty in proving a cause of action or a defense. Evidence destruction may also increase litigation costs and cause the trial court to make factfinding errors. Texas courts should adopt the tort of spoliation of evidence because it compensates injured litigants and deters future acts of spoliation. Another reason for adopting the tort for spoliation of evidence is the inadequacy of alternative …

D.W.I. Suspects Do Not Have Right To Consult With Counsel Before Intoxilyzer Test Under Texas Constitution Because Test Is Not A Critical Stage In Proceedings., Clifford C. Herberg Jr.

St. Mary's Law Journal

Under the Texas Constitution, D.W.I. suspects do not have a right to consult with counsel before an intoxilyzer test because the test is not considered a “critical stage” in proceedings. In Forte v. State, the Texas Court of Criminal Appeals adopted the critical stage approach and held D.W.I. suspects do not have a right to counsel under the Texas Constitution until the filing of the complaint. The court reasoned because the statute implies consent to the test, and the suspect has no legal right to refuse the test, counsel’s presence would not serve to protect “any known right or safeguard,” …

The Legal Community And The Transformation Of Disputes: The Settlement Of Injunction Actions, James B. Atleson

Journal Articles

Lawyers in cases involving injunctions against picketing represent clients in situations of great immediacy. A significant number of injunction actions are settled with reductions in picketing despite a seemingly restrictive statute and a highly organized workforce. This study of legal culture examines the role of lawyers in striving to create predictability, especially in regard to judges and the police, and in transforming conflicts of value into disputes over interests that can be resolved without resort to formal adjudication.

A Republican Agenda For Hobbesian America?, Elizabeth B. Mensch, Alan Freeman

Journal Articles

No abstract provided.

A Judge Shapes And Manages Institutional Reform: School Desegregation In Buffalo, Judy Scales-Trent

Journal Articles

No abstract provided.

Fundamental Error When Rule Against Misjoinder Violated By Charging More Than One Non-Property Offense In Same Indictment Resulting In Multiple Convictions., Virginia Coyle

St. Mary's Law Journal

Abstract Forthcoming.

Statutory Claims For Unfair Insurance Settlement Practices - Vail V. Texas Farm Bureau Mutual Insurance Company., Joseph G. Chumlea

St. Mary's Law Journal

No abstract provided.

Warranties, Disclaimers, Limitation Of Remedies, And The Texas Deceptive Trade Practices Act., Thomas Black

St. Mary's Law Journal

No abstract provided.

Private Cause Of Action For Unfair Insurance Claim Settlement Practices Exists Under Texas Deceptive Trade Practices Act And Insurance Code., Gloria F. Christmas

St. Mary's Law Journal

In Vail v. Texas Farm Bureau Mutual Insurance Company, the Texas Supreme Court held a private cause of action for unfair insurance claim settlement practices exists under the Texas Deceptive Trade Practices Act and Insurance Code (DTPA). The DTPA and Insurance Code have repeatedly been used against the insurance industry in the areas of first and third-party claims, particularly in cases involving sales misrepresentations and post-loss claims misconduct. The goal of DTPA is to provide adequate safeguards to aggrieved consumers and, therefore, a broad interpretation of the act allows the courts to provide consumers a remedy and deter the continuance …

Civil Rico: Overview On The Eve Of The 200th Anniversary Of The Federal Judiciary., Dan A. Naranjo, Edward L. Pina

St. Mary's Law Journal

Abstract Forthcoming.

Damages For Emotional Distress In Fraud Litigation: Dignitary Torts In A Commercial Society, Andrew L. Merritt

Vanderbilt Law Review

One of the most dynamic developments in modern tort law has been the increased focus on damages for emotional distress. During the past few decades courts have fashioned several new tort theories to allow recovery of emotional distress damages as independent causes of action. At the same time, lobbyists and legislators have attacked these damages for contributing to "runaway" jury verdicts. As a result of these attacks, a growing number of states are enacting statutes that limit recovery of emotional distress damages in traditional tort are as such as medical malpractice. Thus, damages for emotional distress are at a crossroads …

Summary Judgments In Texas., David Hittner, Lynne Liberato

St. Mary's Law Journal

Abstract Forthcoming.

Squeezing The Lemon - Helping Texas Consumers With New Car Problems., Darby Riley

St. Mary's Law Journal

No abstract provided.

Military Contractors Who Comply With Elements Of Government Contractor Defense Are Immune From Products Liability Suits Stemming From Design Defects., Matthew J. Sullivan

St. Mary's Law Journal

In Boyle v. United Technologies Corp., the United States Supreme Court held military contractors who comply with the elements of the government contractor defense are immune from products liability suits stemming from design defects. Lower courts consider the government contractor defense to be a combination of two separate defenses. The first is the well-settled contract specification defense which eliminates liability for contractors who properly follow client supplied specifications. The second defense is the doctrine of shared sovereign immunity shielding the contractor from liability based on public policy concerns.

In Boyle, the Court held defective design of military equipment will not …

The Reasonable Doubt Rule And The Meaning Of Innocence, Scott E. Sundby

Articles

No abstract provided.

Law's Centaurs: An Inquiry Into The Nature And Relations Of Law, State And Violence, Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

The unfortunate truth claim which I wish to pursue in this paper is that the deep structural presupposition (which is almost universal amongst lawyers and clearly dominant among lay people) that law and violence stand in stark opposition is false. I argue that violence is endemic to any conception of modern law, that it is authorized by the legislature and/or executive, sanctioned by the judiciary, and perpetrated by what are euphemistically called the forces of law and order - the police, the military et cetera. In brief, I wish to posit the disquieting thought that legal violence is a sine …

Forgetting The Constitution, Robert F. Nagel

Publications

No abstract provided.

Cable Traffic And The First Amendment Must-Carry Under A Diversity Approach And Antitrust As Possible Alternative, Bruno Vandermeulen

LLM Theses and Essays

Recent technological progress in the field of telecommunications has greatly changed the competitive structure between broadcasters, cable operators, and telephone companies. The legal and economic environment for these media participants has shifted, and new problems have arisen. One major problem is the enhanced threat of concentration of media corporations, as corporate bigness becomes desirable and the number of diversified owners of media outlets continues to decrease. This paper analyzes broadcasting regulations and subsequent case law to show the concern by the legislature and regulatory agencies to preserve diversity in opinion and media-ownership through emphasis on “localism” and a “marketplace of …

Freedom Of Communicative Action: A Theory Of The First Amendment Freedom Of Speech, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

We are still searching for an adequate theory of the first amendment freedom of speech. Despite a plethora of judicial opinions and scholarly articles, there are fundamental conflicts over the meaning of the words "Congress shall make no law ... abridging the freedom of speech." This Article examines the possibility that recent developments in social theory can aid our understanding of the freedom of speech. My thesis is that Jiirgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Faculty Scholarship

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?

Agency And Partnership: A Study Of Breach Of Promise Plaintiffs, Mary I. Coombs

Articles

No abstract provided.

Is Abandoning State Action Asking Too Much Of The Constitution, Scott E. Sundby

Articles

No abstract provided.

Law, Literature, And The Celebration Of Authority, Robin West

Georgetown Law Faculty Publications and Other Works

Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of “liberal legalism” against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the “misunderstood relation” to which the title refers. At times, Posner suggests …

A Barrel Without Hoops: The Impact Of Counterterrorism On Israel's Legal Culture, Pnina Lahav

Cardozo Law Review

No abstract provided.

One Judge's Battle Against The New York City Judicial Establishment, Percy R. Luney Jr.

North Carolina Central Law Review

No abstract provided.

The Future Of Liberal Legal Scholarship, Ronald K.L. Collins, David M. Skover

Michigan Law Review

Earl Warren is dead.

A generation of liberal legal scholars continues, nevertheless, to act as if the man and his Court preside over the present. While this romanticism is understandable, it exacts a high price in a world transformed.

The following commentary is a reconstructive criticism written from the perspective of two liberals concerned about the future of "legal liberalism." We present our views as a commentary to emphasize their preliminary character; they represent our current assessment of where liberals stand and where they might redirect their energies.

Reason, Passion, And “The Progress Of The Law”, William J. Brennan Jr.

Cardozo Law Review

No abstract provided.

Legal Implications Of Epilepsy, H. Richard Beresford

Cornell Law Faculty Publications

Physicians who care for patients with epilepsy may function as agents or targets of social control. As agents, they may assist in the identification and control of epileptic drivers, may provide information that enables fair and appropriate job placements for epileptic persons, and give testimony that helps the legal system resolve issues relating to the liability of epileptic persons for harm attributed to seizures or interictal behavioral disturbances. As targets, they may be charged with negligent failure to diagnose, treat, or inform about epilepsy or its associated problems, with failure to exercise due care in protecting persons harmed by their …

Funding Legal Services For The Poor: Floria's Iota Program -- Now Is The Time To Make It Mandatory, Gregory A. Hearing

Florida State University Law Review

No abstract provided.