Law Commons^™

Heitman V. State: The Question Left Unanswered., Matthew W. Paul, Jeffrey L. Van Horn

St. Mary's Law Journal

In Heitman v. State, the Texas Court of Criminal Appeals appeared to break with the court’s prior holdings to announce it would no longer “automatically adopt and apply” to the search and seizure provisions of the Texas Constitution “the Supreme Court’s interpretations of the Fourth Amendment.” The reaction to Heitman was immediate and striking. Heitman is obviously a significant decision that could impact Texas criminal jurisprudence for decades. Yet, the decision left many questions unanswered, including whether the search and seizure provision should be construed as placing greater restrictions on law enforcement than the Fourth Amendment of the United States …

Peremptory Jury Strike In Texas After Batson And Edmondson., Alan B. Rich

St. Mary's Law Journal

In Batson v. Kentucky, the United States Supreme Court overruled that portion of Swain v. Alabama, which had imposed a “crippling burden of proof” upon a person who wished to vindicate his right of equal protection under the Fourteenth Amendment in the face of a racially motivated peremptory challenge. Under Batson, a defendant can raise an inference of discrimination and prove it using only evidence adduced at his own trial. Two fundamental questions needing resolution prior to involving the Batson procedures are: (A) who has standing to bring a Batson challenge; and (B) who must be challenged before the Batson …

Living In Limbo: Single Asset Reorganizations Within The Financially Distressed Fifth Circuit., Thomas J. Meaney

St. Mary's Law Journal

Abstract Forthcoming.

Unpublished Opinions Shall Not Be Cited As Authority: The Emerging Contours Of Texas Rule Of Appellate Procedure 90(I)., David M. Gunn

St. Mary's Law Journal

In Texas, worries of judicial overproduction have persisted throughout the twentieth century. Although the Texas Supreme Court began to use per curiam opinions more frequently around 1925, the flood continues. Texas now has more courts and judges than ever before, and history offers no reason to expect retrenchment. The present scheme in Texas creates two classes of judicial opinions, published and unpublished. Unpublished opinions are not supposed to count for purposes of stare decisis, while published opinions do. Texas Appellate Rule 90 regulates the issuance of opinions from the courts of appeals. Part (a) requires intermediate courts to issue written …

The Evolution Of Government Liability Under Section 1983., Christopher J.M. Pettit

St. Mary's Law Journal

The Fourteenth Amendment of the United States Constitution provides in order to enforce the law, Congress shall have the power to pass enabling legislation. In the exercise of this power, Congress enacted the Civil Rights Act of 1871, to implement the prohibition of slavery as required by the Thirteenth Amendment. Although the Thirteenth Amendment abolished the institution of slavery, discriminatory actions by private citizens remained prevalent. During the period following reconstruction, congressional legislation shifted focus from prohibiting state action to prohibiting the actions of private individuals who violated the civil liberties of others. Through the passage of the Civil Rights …

Capital Punishment: A Critique Of The Political And Philosophical Thought Supporting The Justices' Positions., Samuel J.M. Donnelly

St. Mary's Law Journal

Since Gregg v. Georgia, the Supreme Court has developed what could be described as a subparadigm for capital punishment. This subparadigm is now at a point of crisis for two enduring and mutually supporting reasons. The dissents by Justice Brennan and Justice Marshall represent the convergence of the better modern thought in regard to capital punishment. Even with the retirement of both Justices, the criticism found in their dissenting opinions presents a continuing challenge to the plurality’s position. Those using the plurality’s rhetoric are now split into two groups. Justices Blackmun and Stevens regularly vote against capital punishment, while focusing …

Maquiladoras: Will The Program Continue., Cheryl Schechter, David Brill Jr.

St. Mary's Law Journal

This Article will discuss the industry and relevant aspects of the legal framework which evolved into the modern maquiladora operation. It will also analyze the possible impact of the ongoing North American Free Trade Agreement (NAFTA) negotiations on the Mexican maquiladora industry. In the late seventies and early eighties, Mexico plunged into an economic crisis brought on in part by its almost exclusive dependence on oil exports. The extreme drop in the international oil market forced the country to restructure its economy with a greater emphasis on manufacturing for export. Mexico’s maquiladora program played a key role in this aspect …

Federal Income Tax Issues In The Organization, Financing, And Operation Of Maquiladoras., William R. Leighton, T. Richard Sealy Iii

St. Mary's Law Journal

This Article principally considers various United States federal income tax issues in the formation, financing, and operation of maquiladoras. Mexico’s most successful means of attracting foreign investment is its Maquiladora Program. Mexico created the program to encourage U.S. and other non-Mexican enterprises to establish manufacturing facilities in Mexico. It spawned a domestic industry whose economic output is second only to that of Mexico’s national oil industry. In the 1980s, the maquiladora industry experienced explosive growth from 620 plants in 1980 to more than 2,000 currently. They employ approximately 500,000 workers earning an average wage of five dollars per day plus …

Admissibility Of A Rape Victim's Prior Sexual Conduct In Texas: A Contemporary Review And Analysis., James A. Vaught, Margaret Henning

St. Mary's Law Journal

The treatment of rape victims in criminal prosecutions has become and remains a matter of intense public and legal interest in America. The conventional use of evidence of a rape complainant's prior sexual history in rape prosecutions was a major focus of the rape reform movement. A major consequence of the movement for reform is the federal government and forty-nine states enacting rape shield laws limiting the admissibility of evidence concerning the complainant’s sexual history in rape prosecution. This article analyzes the admissibility of evidence of a rape complainant’s prior sexual conduct from its common law origins concentrating on the …

Transborder - Road Transportation., H.N. Cunningham Iii

St. Mary's Law Journal

This Article is intended to serve as a primer for attorneys representing clients engaged in shipping, receiving, and transporting merchandise between points in the United States of Mexico (Mexico) and the United States of America. A “crazy quilt” of laws and regulations govern the rights, duties, and obligations of persons engaged in these activities. These laws include not only the constitutions and statutes of two independent nations, but also the laws and regulations of their various political subdivisions as well. Due to the breadth of this material, this Article’s treatment of the subject is general, providing an overview of the …

The Twenty-Fifth Anniversary Of My Lai: A Time To Inculcate The Lessons, Jeffrey F. Addicott, William A. Hudson Jr

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai massacre and is an appropriate time to reinforce the lessons learned from the event. Each and every grave breach of the law of war represents a horrible scar on the credibility of the American military, as well as the civilized democracy it protects. In this context, My Lai stands as the greatest emblem of American military shame in the twentieth century. Nothing provides a greater vehicle for inculcating the necessity for strict adherence to the law of war than the lessons from the massacre at My Lai.

While …

Operation Desert Storm, R. E. Lee Or W. T. Sherman?, Jeffrey F. Addicott

Faculty Articles

History has shown that one of the most important elements in a successful combat operation is the quality of the commander. The success of Operation Desert Storm confirmed that American commander, General Norman Schwarzkopf, was no mediocre leader. By extension, the war also paid tribute, albeit a silent one, to a man who is arguably the greatest military leader the United States has ever produced—Robert E. Lee. Not only in the sphere of battlefield tactics, but also in ensuring strict adherence to the laws regulating warfare, Generals Lee and Schwarzkopf had much in common.

Unfortunately, however, many are unaware of …

Privitization Of The Mexican Banking System: Quetzalcoatl And The Bankers., John P. Cogan Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Foreign Investment In Mining In Mexico., Rodrigo Sanchez-Mejorada Velasco

St. Mary's Law Journal

The object of this Article is to focus on the current legal provisions which regulate foreign investment in mining in Mexico. Legislation implemented in 1961 reduced foreign participation in mining to a minority position, and legislation implemented in 1975 further developed Mexican control over mining activities. The enactment of new foreign investment regulations in 1989, and new mining regulations in late 1990 allowed wider participation of foreigners in mining. Mining is one of the oldest economic activities in Mexico. Mercantilist economic ideas, in Europe in the seventeenth and eighteenth centuries, stressed accumulation of precious metals by states and saw American …

Environmental Permits: Land Use Regulation And Policy Implementation In Texas., Wm. Terry Bray, R. Alan Haywood, David S. Caudill, Pamela S. Bacon

St. Mary's Law Journal

Real estate lawyers traditionally focused on the applicable zoning ordinances of the governing municipality. Real estate lawyers also are familiar with applicable subdivision ordinances, which typically impose additional limitations on the use of real property. Subdivision platting was originally envisioned as a procedure to ensure orderly development of property within the jurisdiction of a municipality. Many local land use regulations promulgated in recent years focus on the “environment” and purport to be necessary to conserve and protect natural resources. A complex network of federal and state statutes now exists which regulates the use of real property in order to protect …

Limiting Punitive Damages: A Placebo For America's Ailing Competitiveness., Jimmie O. Clements Jr.

St. Mary's Law Journal

This Comment will discuss Vice President Dan Quayle’s proposed legislation by reviewing the history of punitive damages and providing an overview of current state legislation. Thereafter, this Comment debunks the theory of an unruly punitive damage system and analyzes the impact of a punitive damages cap on competitiveness, quality, safety and the doctrine’s underlying goals. On August 13, 1991, Vice President Quayle, as head of the President’s Council on Competitiveness (the Council), addressed the American Bar Association’s annual meeting. He announced a fifty-point proposal designed to improve the civil justice system. Vice President Quayle proposed, inter alia, a cap on …

Wrongful Adoption: A Guide To Impending Tort Litigation In Texas., Fred S. Wilson

St. Mary's Law Journal

Texas has an opportunity to improve a necessary tool of family law by recognizing and advancing wrongful adoption. There is an underlying lack of recognition for the interests of adoptive parents in adoption law. Those who choose to adopt necessarily rely on the information provided by an adoption agency in making their decision. As such, adoptive parents are particularly vulnerable to misrepresentation about the pertinent history of the adoptee. Recent cases in other states demonstrate the progression of wrongful adoption as a tort, yet many inadequacies remain. The necessary progression of wrongful adoption calls for the imposition of a duty …

Codification Of The “Special Forces Exception”, Jeffrey F. Addicott

Faculty Articles

For the past eight years, Army Special Forces units have conducted training and operations with friendly foreign forces outside the United States. The Army has obtained funding for these operations under what has been termed the “Special Forces exception” to a 1986 General Accounting Office (GAO) opinion regarding permissible funds appropriations for foreign exercises.

With the passage of the National Defense Authorization Act for Fiscal Years 1992–1993, Congress has finally codified the Special Forces exception. Subject to a guiding principle regarding the purpose of operations, the commander of Special Operations Command and select others may draw on the Department of …

Changing The Consent Rules For Desert Storm, George J. Annas

Faculty Scholarship

Shortly before the beginning of Operation Desert Storm, during Desert Shield, the U.S. military sought a waiver of requirements for informed consent for the use of investigational drugs and vaccines on our troops in the Persian Gulf. The danger of chemical and biologic warfare was seen as demanding this waiver, although the Nuremberg Code, other codes of medical ethics, and respect for the human rights of American soldiers seemed to caution against it. One year later it seems reasonable to review this decision. The legal maneuvering to revise consent regulations for wartime conditions provides a case study that highlights three …

The Political Philosophy Of Campaign Finance Reform As Articulated In The Dissents In Austin V. Michigan Chamber Of Commerce., John S. Shockley, David A. Schultz

St. Mary's Law Journal

The 1992 presidential candidacy of Jerry Brown, who called for campaign contribution limits, has reignited the issue of campaign finance reform. Indeed, the United States Supreme Court has recognized the importance of campaign finance reform as a judicial issue. The importance of this issue is marked by the Court’s continued willingness to address the regulation of campaign finance since the 1976 landmark case of Buckley v. Valeo. The case of Austin v. Michigan Chamber of Commerce emphasized the somewhat confused nature of the Supreme Court’s campaign finance reform decisions. The Supreme Court and state legislatures will likely continue to address …

Analyzing Scientific Evidence: From Validity To Reliability With A Two-Step Approach., Renee A. Forinash

St. Mary's Law Journal

Throughout legal history, courts have wrestled with scientific evidence. Sometimes the courts admitted invalid evidence disguised as science. In the 1920’s, courts developed a very limited standard of admissibility for scientific evidence. Under the Frye test, a scientific expert’s conclusion was inadmissible unless the conclusion was generally accepted by the scientific community. Although this prevented “junk science” from invading courtrooms, it also protected invalid scientific evidence already present in the system and restricted using new, but valid, scientific techniques. In response, many jurisdictions developed more liberal evidentiary standards. The liberal standards averted the “cultural lag” for which Frye was criticized …

Joint Ventures In Mexico: A Current Perspective., Rona R. Mears

St. Mary's Law Journal

The Article is intended to go beyond legal issues, to address core practical considerations in forging successful U.S.-Mexico joint ventures. Opportunities unmatched in Mexico’s history are now available for foreign investors and traders doing business in Mexico. This Article will begin by presenting a historical perspective on joint venturing in Mexico and then contrast it with an examination of current uses of joint ventures in Mexico. It will also highlight the traditional advantages of strategic business alliances. Following is a detailed review of structuring the Mexican joint venture. Finally, this Article identifies strategies for dealing with practical issues which arise …

Religious Liberty In The Military: The First Amendment Under "Friendly Fire", Kenneth Lasson

All Faculty Scholarship

Though freedom of religion remains one of our most cherished values, it is still among the most controversial of constitutional rights. This is especially true in the context of military service. Even those who purposefully enlist in the armed forces, implicitly giving up certain liberties they freely enjoyed as civilians, would not relinquish their freedom of conscience. Yet the right to practice their religious beliefs, unfettered by arbitrary governmental restrictions, is regularly challenged.

Fortunately, however, most western cultures regard religious liberty as so fundamental that their military establishments routinely develop regulations to accommodate specific religious practices.

This principle was of …

The Legal Regime Governing The Conduct Of Operation Desert Storm, Robert K. Goldman

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Article 51: Limits On Self-Defense?, Thomas K. Plofchan Jr.

Michigan Journal of International Law

This article's two-pronged analysis has three distinct parts. Part I lays out the controversy of Article 51 interpretation as applied to the recent Gulf Crisis. Part II examines the legal guidance for interpreting the U.N. Charter, the Charter's travaux preparatoires, and specifically the work of the committees and subcommittees responsible for drafting and amending articles that fully incorporate the right of self-defense into the Charter. This Part develops conclusions on Article 51 that may be applied to the context of the recent Gulf Crisis. This Part also contrasts the Article 51 right of collective self-defense with the right of …