Law Commons^™

Turning Points In The History Of St. Mary’S University School Of Law (1980–1988), Vincent R. Johnson

St. Mary's Law Journal

St. Mary’s University School of Law in San Antonio, Texas has existed for nearly a century. Thus far, there have been seven important written histories of St. Mary’s University School of Law, but no one has yet attempted to write a comprehensive history of the law school, nor have any members of the faculty published autobiographies. Having taught law at St. Mary’s since 1982, Professor of Law Vincent R. Johnson shares his first-hand account about the life of the law school during most of the 1980s (specifically 1980 to 1988). That period encompasses the bulk of the deanship of James …

50 Years Of Excellence: A History Of The St. Mary's Law Journal, Barbara Hanson Nellermoe

St. Mary's Law Journal

Founded in 1969, the St. Mary’s Law Journal has climbed the road to excellence. Originally built on the foundation of being a “practitioner’s journal,” the St. Mary’s Law Journal continues to produce quality scholarship that is nationally recognized and frequently used by members of the bench and bar. From its grassroots origins to the world-class law review it is today, the St. Mary’s Law Journal continues to maintain its prestigious position in the realm of law reviews by ranking in the top five percent most-cited law reviews in federal and state courts nationwide.

In celebration of the St. Mary’s Law …

Reforming Recusal Rules: Reassessing The Presumption Of Judicial Impartiality In Light Of The Realities Of Judging And Changing The Substance Of Disqualification Standards To Eliminate Cognitive Errors, Melinda A. Marbes

St. Mary's Journal on Legal Malpractice & Ethics

In recent years, high profile disqualification disputes have caught the attention of the public. In each instance there has been an outcry when a presiding jurist was asked to recuse but declined. Unfortunately, even if the jurist explains his refusal to recuse, the reasons given often are unsatisfying and do little to quell suspicions of bias. Instead, litigants, the press, and the public question whether the jurist actually is unbiased and doubt the impartiality of the judiciary as a whole. This negative reaction to refusals to recuse is caused, at least in part, by politically charged circumstances that cause further …

Alternative Business Structures: Good For The Public, Good For The Lawyers, Jayne R. Reardon

St. Mary's Journal on Legal Malpractice & Ethics

There has been a shift in consumer behavior over the last several decades. To keep up with the transforming consumer, many professions have changed the way they do business. Yet lawyers continue to deliver services the way they have since the founding of our country. Bar associations and legal ethicists have long debated the idea of allowing lawyers to practice in “alternative business structures,” where lawyers and nonlawyers can co-own and co-manage a business to deliver legal services. This Article argues these types of businesses inhibit lawyers’ ability to provide better legal services to the public and that the legal …

Ethics And The “Root Of All Evil” In Nineteenth Century American Law Practice, Michael Hoeflich

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the bifurcated notions on the purpose of working as an attorney—whether the purpose is to attain wealth or whether the work in and of itself is the purpose. This Article explores the sentiments held by distinguished and influential nineteenth-century lawyers—particularly David Hoffman and George Sharswood—regarding the legal ethics surrounding attorney’s fees and how money in general is the root of many ethical dilemmas within the arena of legal practice. Through the texts of Hoffman and Sharswood, we find the origins of the ethical rules all American attorneys are subject to in their various jurisdictions.

Conflicts Of Interest For Former Law Firm Clerks Turned Lawyers, Daniel Haley

St. Mary's Journal on Legal Malpractice & Ethics

There is no consensus for how the legal profession should treat a lawyer who has a conflict that arises from their time working as a law clerk while in law school. The majority of states allow a lawyer to be screened from participation if there is a conflict that arises from work they performed while still in law school. Nonetheless, not all states have adopted the Model Rules, and not all states that have adopted them accept and apply their rules uniformly. Clerkships are beneficial to both the student and the potential employer, and to limit these educational experiences due …

Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita

St. Mary's Journal on Legal Malpractice & Ethics

The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …

Professional Responsibility Of The Criminal Defense Lawyer Redux: The New Three Hardest Questions, Todd A. Berger

St. Mary's Journal on Legal Malpractice & Ethics

In 1966, Professor Monroe Freedman authored Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, a work that occupies an important place in the cannon of legal ethics. Freedman believed that the three hardest questions facing a criminal defense attorney relate to whether it is ethical to discredit a truthful witness; whether it is proper to knowingly allow a client to testify falsely; and whether a lawyer may provide a client with legal advice when the lawyer suspects the client may use that advice to commit a crime. Beyond Freedman’s queries there are other important, yet largely unaddressed, …

The Homosexual Law And Policy In The Military: "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" . . . Don't Be Absurd!, Debra A. Luker

The Scholar: St. Mary's Law Review on Race and Social Justice

The violent murder of Army Private First Class Barry Winchell, a suspected homosexual, is a gruesome example of how the military does not tolerate homosexuals. The military’s current homosexual policy – referred to as Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass – is ineffective. The policy creates an atmosphere of intolerance that leads to discrimination among homosexual service members, and this discrimination often has violent ends. This comment analyzes the ways other countries implement policies for their homosexual service members, and also offers proposals to improve the current homosexual policy in the United States. The author discusses how the …

Education And Its Discontents: The Decriminalization Of Truancy And The School-To-Prison Pipeline In Texas., Steven E. Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

The Texas Legislature ended the longstanding criminalization of truancy violations in Texas schools. With the passage of House Bill (H.B.) 2398, the manner in which the courts, school districts, and the Texas Education Agency (TEA) are expected to handle truant students has been greatly altered. Nonetheless, it remains to be seen what material effect these new measures will have on Texas schools, students, and their families. In order to understand the extent to which the new laws and regulations may affect the lives of students and their parents, it is important to examine the material consequences of the school-to-prison pipeline …

The Police-Community Partnership: Civilian Oversight As An Evaluation Tool For Community Policing., Nathan Witkin

The Scholar: St. Mary's Law Review on Race and Social Justice

Citizen review boards (CRBs) tend to act as unofficial criminal courts for police misconduct. Without the binding, legal powers of the court, these civilian oversight bodies are often ineffective and draw resistance from law enforcement. “Community policing,” or community-oriented policing (COP) is a law enforcement strategy that emphasizes the use of problem-solving skills through community engagement and partnerships, but performance through arrests/citation statistics only. Without a process to evaluate public relations skills, the COP strategy encourages officers to reduce distance between them and the community while retaining a crime-fighting focus—a dynamic that increases tension and violence between police and crime-prone …

No Un Jurado De Mis Pares: Juror Exclusion Of Limited English Proficient Speakers., Michael Mccann

The Scholar: St. Mary's Law Review on Race and Social Justice

In the context of fulfilling civic duties as a citizen, accessibility to language assistance programs ensures every individual, including those with limited English proficiency (LEP), is afforded the opportunity to exercise their fundamental rights. Preservation of the integrity of the justice system must be provided in a comprehensive manner, not merely in one part of the legal proceedings or isolated to one part of the courthouse. LEP citizens should be integrated in public society, not disqualified from it. Statutes that create overly burdensome language proficiency standards create problems with the jury selection process. These standards limit and often deny LEP …

Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza

St. Mary's Law Journal

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …

A Law And Economics Analysis Of The Duty Of Utmost Good Faith (Uberrimae Fidei) In Marine Insurance Law For Protection And Indemnity Clubs., Elizabeth Germano

St. Mary's Law Journal

Writing for the Supreme Court in The Lottawanna in 1875, Justice Joseph P. Bradley envisioned federal and state regulation of maritime affairs as “a system of law coextensive with, and operating uniformly in, the whole country.” He thought state involvement in maritime law defeated the consistency and uniformity the Constitution sought to achieve for interstate and international commerce. Over 100 years later, Justice Antonin Scalia, describing the current relationship between state and federal regulation in the admiralty arena, stated: “It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty …

The Admissibility Of Aerial Photographs - Evidentiary Foundations., Kristopher R. Hufstetler

St. Mary's Law Journal

Services such as Google Maps and MapQuest significantly impact how consumers use the Internet. For as much as they contribute to Internet use, issues arise concerning the use of satellite images and aerial photographs in the context of litigation. Historical concerns about satellite and aerial imagery typically involved expectations of privacy and the application of the Fourth Amendment. Courts and citizens alike express concern with when and where privacy ends with respect to aerial views. Concerns as to the admissibility of aerial photographs have also been prominent. Specifically, interest in admissibility of these photographs focuses on sufficiency, relevance, and accuracy. …

Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick

St. Mary's Law Journal

Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …

The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism., L. Wayne Scott

St. Mary's Law Journal

When lawyers are well prepared, know the law, present the law, and have it ignored by judges who interpret the law in their own way, it can be frustrating. When courts publish opinions embodying this attitude, students, too, become frustrated or conclude that the law is whatever judges decide it should be. This Article does not focus on unethical judges who decide cases with wrong motives but, rather, it focuses on ethical judges who are faced with “hard” cases and have the dilemma of deciding the case, either by the rule or by the judge’s concept of fairness. In both …

When Fantasy Becomes Reality: Attempts To Regulate The Highly Unregulated Daily Fantasy Sports Industry., Garrett Greene

St. Mary's Law Journal

Legislation is beginning to creep into the once safeguard-devoid sphere of the daily fantasy sports industry. Daily fantasy sports are a subset of traditional season-long fantasy sports and are immensely lucrative, yet there are hardly any standard regulations. Ironically, the Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006, which was used to outlaw online poker gambling, paved the way for daily fantasy sports, because it federally exempted fantasy sports from being classified as illegal sports gambling. The UIGEA further protects daily fantasy sports from the Professional and Amateur Sports Prohibition Act (PASPA) of 1992 which prohibits states from sponsoring sports …

Texas's Excessive Demand Doctrine Impacts Recoveries In Litigation., Stephanie M. Green

St. Mary's Law Journal

A party demanding money they are not entitled to becomes subject to the excessive demand doctrine. Because the excessive demand doctrine is an affirmative defense, a defending party must allege its claim of excessive demand in its pleadings. A party must “plead it, prove it, and obtain findings of fact on its essential elements.” To obtain findings on the issue, both the pleadings and the evidence are required to put a question or instruction before the jury. Ensuring that the evidence is enough depends upon the trial court—whose judgment will only be overturned upon a showing of an abuse of …

Use It Or Lose It: Grappling With Classification Of Post-Petition Sale Proceeds Under Chapter Seven Bankruptcy For Consumer Debtors In The Lone Star State., Danielle Nicole Rushing

St. Mary's Law Journal

Texas affords consumer debtors some of the most generous state bankruptcy exemptions in the United States. This includes the homestead exemption, which permits consumer debtors to exempt a homestead of unlimited value from forced sale, subject to certain enumerated exceptions. Bankruptcy courts throughout the state are grappling with how to characterize proceeds from the sale of an exempted homestead once a consumer debtor files a Chapter Seven bankruptcy petition. Specifically, courts consider whether a debtor may personally retain funds from the sale of a homestead or whether a Chapter Seven Trustee should receive the sale proceeds on behalf of the …

The Politics Of The Bail System: What's The Price For Freedom., Lydia D. Johnson

The Scholar: St. Mary's Law Review on Race and Social Justice

The only factor determining the release of a defendant from custody before his trial date is money. The government should eliminate the current bail system and replace it with mandated pre-trial release unless the state can prove the defendant to be a flight risk or a danger to society. This bail system has an adverse economic impact on minorities and on poor communities. Some states have used their constitutions to implement pre-trial release. Texas has four constitutional provisions which would permit similar implementations. However, clashing political ideologies and institutional alliances continue to prevent the construction of a workable solution. Dismantling …

Community Rights: Fighting The Walmart Invasion Of Small Town American With Legal Intelligence., Andre M. Larkins

The Scholar: St. Mary's Law Review on Race and Social Justice

Small communities, like Cibolo, Texas, can counter Walmart’s retail offensive by turning to the law. After achieving global retail superiority, Walmart now looks to dominate the retail market of small towns across America. An average of 1.5 new Walmart stores open every day. Annually, the retail giant earns gross revenue totaling $483 billion, rivaling the gross domestic product of many countries. Communities can defend against Walmart’s invasion of neighborhoods and their abundant resources by careful application of legal intelligence. Legal intelligence is the collection, processing, integration, analysis, and interpretation of relevant legal practice or history to produce usable information aimed …

The New World Of Prosecutorial Discretion In Immigration Enforcement: Lessons From Criminal Justice., Aaron Haas

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Gradually Exploded: Confrontation Vs. The Former Testimony Rule., Tim Donaldson

St. Mary's Law Journal

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination. But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of …

The Economic Loss Doctrine As An Obstacle To Claims Of Contractual Strangers., Richard L. Reed, Richard L. Reed Jr.

St. Mary's Law Journal

Home owners, contractors, and subcontractors entering a contract to build in accordance with another’s design must be aware of their respective risks under the economic loss doctrine. The economic loss doctrine bars recovery due purely to economic loss by a party that is a contractual stranger. In a typical construction contract, a homeowner may separately contract with a contractor and a design professional. In this situation, the contractor does not have privity with the design professional and the economic loss doctrine bars the contractor from suing the design professional for economic loss. Likewise, if the homeowner hires a contractor and …

Sovereign Immunity: The Texas Department Of Transportation's Duty To Maintain Roadways Ravaged By The Eagle Ford Shale Boom., Lasca A. Arnold

St. Mary's Law Journal

While the shale boom has brought about many positive results such as economic growth and new jobs to the Eagle Ford Shale region, the ravaged roadways left in the aftermath must be addressed. The demands for equipment and manpower created by oil and gas exploration are extensive. Sadly, the Texas Department of Transportation (TxDOT)—the entity charged with maintaining and repairing roads in these affected counties—refuses to supply sufficient funding to repair the over used roadways. This pressure is exerted in rural areas where most of the roads and bridges are designed for lower volumes of traffic. In addition to the …

Defining A Health Care Liability Claim In The Post-Texas West Oaks Era., William Woolsey

St. Mary's Law Journal

Following the Texas Supreme Court’s rulings in West Oaks Hospital v. Williams and Ross v. St. Luke’s Episcopal Hospital, it remains unclear whether a non-patient’s injury in a hospital constitutes a health care liability claim (HCLC). If the trial court rules the claim is an HCLC, the plaintiff must present expert testimony. Failure to present an expert report within 120 days after filing the suit results in automatic dismissal. The Texas Supreme Court addressed this issue in West Oaks. The Court held that a claimant, suing a hospital under a theory of premise liability, need not be a patient for …

A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell

St. Mary's Law Journal

Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …

Crisis At The Border: A Need To Reexamine The Doctrine Of Sovereign Immunity., Guinevere E. Moore, Robert T. Moore

The Scholar: St. Mary's Law Review on Race and Social Justice

Altercations between Border Patrol agents and nationals along the United States-Mexico border continue to reveal a trend of disproportionate use of force. This often results in death and a lack of justice in American courts. To hold the American government accountable for the actions of their agents, the United States should adopt a policy of waiving its sovereign immunity in cases where there have been violations of fundamental human rights.

The foreign sovereign immunity doctrine states a foreign sovereign cannot be brought into a United States court without first waiving its sovereign immunity from suit. With this, the United States …

Venturing Into A Minefield: Potential Effects Of The Hobby Lobby Decision Of The Lgbt Community., Aglae Eufracio

The Scholar: St. Mary's Law Review on Race and Social Justice

While freedom of religion is a right guaranteed to the American people, what that freedom entails, is often misunderstood. Religious freedom affords every American the right to practice any faith without fear of being persecuted or ostracized by the government. This fundamental right is frequently used to oppress certain groups of Americans because their lifestyle is not in accordance with traditional Christian values. This was highlighted in the recent case of Burwell v. Hobby Lobby. The controversy stemmed from the corporation’s use of religion as a method to deny women access to full healthcare coverage, citing religious opposition to abortion …