Law Commons^™

Records About The School Of Law, St. Mary's University Archives

Finding Aids

The extant records of the Law School of Saint Mary’s University of San Antonio, Texas are assembled from the offices of the president, the vice president for academics, and other administrators. These records were generated by various administrators in pursuit of the educational objectives of the university. They include memos and letters between the law deans and the university administration, deliberations about educational policy, about faculty compensation, about tenure policies, and about curriculum. Also present are some records relating to law student associations, programs for in-service legal education (“law clinics”), and law school publications.

The Beginning Of The End: Abolishing Capital Punishment In Virginia, Alexandra L. Klein

Faculty Articles

When thinking about the history of capital punishment in the United States, I suspect that the average person is likely to identify Texas as the state that has played the most significant role in the death penalty. The state of Texas has killed more than five hundred people in executions since the Supreme Court approved of states' modified capital punishment schemes in 1976. By contrast, Virginia has executed 113 people since 1976.

But Virginia has played a significant role in the history of capital punishment. After all, the first recorded execution in Colonial America took place in 1608 at Jamestown, …

Unsung Heroes In Sa And Beyond Help Immigrants Find Hope, Erica B. Schommer

Faculty Articles

No abstract provided.

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

Faculty Articles

All of Texas was once part of Mexico. Texas has never forgotten it. This is the historical basis for much of the Texas Latino population's struggle for equal educational opportunities. This article will discuss those struggles endured by the Latino population in their quest for equal educational opportunity from the time of Texas's entry into the Union in 1845 to present-with greater emphasis on the last half century. In each Section, I will briefly describe the history of discrimination against Mexican- Americans in that segment of education history and the relationship between the developments in that segment of education history …

Landowners Under Siege In The Big Bend, Amy Hardberger

Faculty Articles

It is safe to say that property rights are sacred in Texas. Nowhere is this truer than in the Big Bend region of Texas. In 2012, the Texas Attorney General’s Office issued a Landowner’s Bill of Rights specifying all the protections each of us has against government interference, including the taking of property under eminent domain. One of the requirements for land condemnation is that it be for a public use. This is to ensure that the burden placed on a few will benefit the larger community; however, the mechanisms for balancing private property rights against the public good are …

Put Your Money Where Your Water Is: Building Resilience Through Rates, Amy Hardberger

Faculty Articles

Utilities are challenged with the task of meeting future water demands while generating revenue through the use of the resource. Customarily, utilities base demand projections on subsequent use and calculate price on past consumption. The traditional model of extrapolating cost, based on past consumption, does not allow the utility flexibility to protect the resource in times of crisis. In recent years, water resources have been taxed by population increases and changes in weather patterns. Utilities encourage the use of water at low fees and are unable to conserve during times when the resource is available and cheap. This ineffective rate …

Deadly Misunderstandings About Police Use Of Deadly Force, Gerald S. Reamey

Faculty Articles

This short article, written for law enforcement and criminal justice professionals in Texas, summarizes and addresses some of the most common ways in which the laws of justification in Texas are misunderstood and misapplied. The focus is on the use of deadly force by law enforcement officers and the specific provisions contained within the Texas Penal Code regulating the use of the highest level of force by police and others.

Piercing The Fiduciary Veil, Colin P. Marks

Faculty Articles

Limited partnerships (LPs) and limited liability companies (LLCs) permit formation with a unique management structure in that these entities may be managed by another limited liability entity, such as a corporation. Thus, the true managers are those individuals who manage the manager. It is well settled that the managing entity, such as a corporate general partner, owes default fiduciary duties, but what of these second-tier managers? Technically, it is the managing entity that owes the duties, not the managing entity’s owners, officers, and directors, yet courts have struggled with strict adherence to this separation when it would seem inequitable to …

The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter

Faculty Articles

On November 19, 2014, the Texas Supreme Court issued an Order amending all of the Texas Rules of Evidence, effective April 1, 2015. In its Order, the Court explained that the amendments were part of an effort to “restyle” the Rules, to make them as consistent as possible with the Federal Rules of Evidence, and to make them easier to understand.

The 2015 amendments to the Texas Rules of Evidence are a commendable step toward making the Rules more user-friendly. It is clear to even the casual reader that the reformatting of the Rules, through the use of consistent and …

Scientific, Legal, And Ethical Foundations For Texas Water Law., Gabriel Eckstein, Amy Hardberger

Faculty Articles

Water law is the field of law concerned with the ownership, control, and use of water resources, both surface and subsurface. Although most closely related to property law, recent developments in other legal fields, especially in environmental law, have heavily influenced the interpretation, application, and development of water law. As a result, water law today encompasses a broad perspective and often takes into account individual and community rights, environmental issues, commerce and economics, and other societal and legal concerns. Significantly, modern water law is also an interdisciplinary practice. In light of the continuously expanding body of knowledge of the hydrologic …

World’S Worst Game Of Telephone: Attempting To Understand The Conversation Between Texas’S Legislature And Courts On Groundwater, Amy Hardberger

Faculty Articles

Texas has flourished in recent years, and its continued growth is predicated on access to groundwater resources. Texans have a long-standing dependence on groundwater, which accounts for 60% of all water withdrawn in the state. The State’s ability to provide sufficient groundwater resources depends on effective groundwater management.

Texas groundwater management has a long history of intertwined court decisions and legislation. The common law of groundwater was established by the Texas Supreme Court in accordance with the English common law right of capture. This rule was subsequently modified by the Legislature through the Conservation Amendment to the Texas Constitution, which …

Powering The Tap Dry: Regulatory Alternatives For The Energy-Water Nexus, Amy Hardberger

Faculty Articles

Water and energy are indivisibly linked and interwoven into every aspect of our culture and lifestyle. Large quantities of water are required to generate energy, and energy is required at all stages of the water supply process. Population growth and corresponding demand create significant community consequences including energy blackouts and water shortages. In order to help avoid these unintended consequences, appropriate planning must be done on the local, state, and federal level.

A critical first step in achieving better sustainability is understanding the quantifying relationship between energy and water. This relationship needs to be recognized by both the power and …

The Energy-Water Nexus In Texas, Amy Hardberger, Ashlynn Stillwell, Carey King, Michael Webber, Ian Duncan

Faculty Articles

As we confront the challenges posed by climate change, decisions on supplying energy and water to the world’s growing population should no longer be made in isolation. The challenges facing Texas and the rest of the globe require that we recognize the deep inter‐connections and trade‐offs involved in deciding how to meet power and water needs in an increasingly resource‐constrained world.

This report is the first in a series designed to explore aspects of the energy‐water nexus in Texas. It examines the water requirements for various types of electricity generating facilities, both for typical systems nationwide and here in Texas. …

The Court Of Appeals For The Fifth Circuit: A Review Of 2007-2008 Insurance Decisions, Willy E. Rice

Faculty Articles

The Fifth Circuit Court of Appeals decided a considerable number of insurance-related controversies between June 2007 and May 2008. Arguably, the most important, comprehensive decisions are discussed-nineteen insurance cases that originate in just five federal district courts. Generally, the Fifth Circuit decided familiar questions of law and fact. More specifically, the following types of procedural and substantive conflicts appear in the nineteen insurance decisions: (1) one case involving the constitutionality of a Texas insurance statute; (2) two federal preemption and removal controversies involving the Employee Retirement Income Security Act (“ERISA”); (3) two disagreements requiring the court of appeals to make …

The Effect Of Tort Reform On Tort Case Filings, Patricia W. Moore

Faculty Articles

Does so-called "tort reform" decrease tort case filings? In Texas and other states that have enacted numerous rounds of tort reform, the answer appears to be a resounding "yes," at least as of the year 2000. More recent evidence from Oklahoma supports that conclusion and provides an interesting case study within the tort reform juggernaut.

During at least the past twenty years, tort reformers have achieved substantial legislative successes and, some would argue, public relations victories. Yet their desire for more "reform" seems insatiable, and their legislative agenda rarely sleeps.

Tort reform bills bloom perennially in the Oklahoma legislature, and …

From Policy To Reality: Maximizing Urban Water Conservation In Texas, Amy Hardberger

Faculty Articles

Ensuring that Texas is sustainable in the 21st century depends in large part on smart management of the state’s water resources. A central element of that challenge is improving the efficiency of water use in the rapidly growing urban areas of the state. More efficient water use technologies, more sophisticated understanding of water pricing, and the ability to more carefully measure water use at both the individual and municipal level provide new opportunities to reach advanced levels of water use efficiency.

Water supply planning is constantly evolving and forces such as population growth and climate change are making it more …

The Law Of Mediation In Texas, L. Wayne Scott

Faculty Articles

State law concerning mediation is continuing to develop in Texas. The Texas Alternative Dispute Resolution Act (“the Act”), passed in 1987 and codified in the Texas Civil Practice and Remedies Code, attempted to resolve Texas judicial opinions on mediation. Since the passage of the Act, a number of judicial opinions have sought to interpret and apply the Act. As such, it became public policy to encourage the peaceable resolution of disputes. Mediation is a method to accomplish that public policy. Both published and unpublished judicial opinions serve to illustrate the application of the Act and provide the only guidance that …

The Growing Role Of Fortuity In Texas Criminal Law, Gerald S. Reamey

Faculty Articles

Texas’ recent departure from culpability based crimes now means luck plays a bigger role in the punishment for these crimes. Texas has departed from the traditional notion of punishment based on individual fault, and has arrived at a place where these “new” ways of conceptualizing criminal responsibility adequately and satisfactorily account for the interests served by a more restrictive definition of criminal fault. Traditionally, criminal responsibility attached only when mens rea combined with volitional conduct--or the withholding of some required act--to produce a public harm.

In Texas, there seems to be a trend to punish actors for the harm they …

Insurance Decisions - A Survey And Empirical Analysis, Willy E. Rice

Faculty Articles

During the period from June 2002 to July 2003, the Court of Appeals for the Fifth Circuit decided twenty-two appeals originating in eight federal district courts. Certainly, the greater majority of the insurance appeals involved recurring substantive and procedural conflicts. Major disagreements about the interpretation and enforcement of insurance contracts were before the court. Also, federal preemption questions and conflicts over subject-matter jurisdiction appeared in several cases. Furthermore, the Fifth Circuit addressed one case of first impression, and on remand from the Supreme Court, the appellate court modified and reinstated portions of a vacated opinion. For the most part, the …

Secured Transaction History: The Impact Of English Smuggling On The Chattel Mortgage Acts In The Spanish Borderlands, George Lee Flint Jr, Marie Juliet Alfaro

Faculty Articles

Spanish colonies, including the territories of Florida, Louisiana, and southwestern America, acknowledged the jurisdiction of Spanish royal decrees. The colonies approached the registration of mortgages in a similar but more tentative fashion, recognizing the distances between the borderlands and the registrar’s offices. The law developed differently in Florida and Louisiana, which were administered by a different governmental body. While the registration process was required for chattel mortgages on slaves, there is no evidence the rules were enforced or applied to other types of mortgages on personalty. However, in 1770, Louisiana adopted a filing requirement for chattel mortgages for all slaves …

The More Things Change, The More They Stay The Same: The Employment-At-Will Doctrine In Texas, Bonita K. Roberts

Faculty Articles

The Texas Legislature should reject the employment-at-will doctrine in Texas. A carefully crafted new law could be created through the assessment of both the Montana Wrongful Discharge from Employment Act and the Model Employment Termination Act (“META”), approved by the National Conference of Commissioners on Uniform State Law. Texas recognizes common-law and statutory exceptions to the employment-at-will doctrine. However, the statutory and common-law exceptions to the employment-at-will doctrine do not swallow the rule; instead, they constitute random, narrow efforts affording employees few protections while requiring employers to defend their decisions on a costly, piecemeal basis.

The Montana Employment Act protects …

Applying Edgewood V. Kirby To Analysis Of Fundamental Rights Under The Texas Constitution, Albert H. Kauffman

Faculty Articles

State constitutions are affirmative grants of power under which both stated and implied fundamental rights can be sought. A proposed test for fundamental rights under the Texas Constitution looks at three factors: the history of the topic within the Texas Constitution and case law; the actual language used in the controlling provision; and the importance of that value to the people of Texas. The declaration of a constitutional right as fundamental certainly has implications for future relationships between the people and the government.

The Edgewood v. Kirby case has the potential to change much in Texas. The case stands for …

Time Changes: Growing Complexity In Texas Sentencing Law, John M. Schmolesky

Faculty Articles

The Seventieth Legislature made criminal sentencing guidelines more onerous, but a number of factors combined to undercut its impact. These changes made the relationships between the legislative, judicial, and administrative components of the criminal justice system become increasingly complex, often resulting in one agency undercutting the decisions of another. Because of the complex web of agencies that have a role in determining the disposition of a convicted defendant, changes in the rules of sentencing must be analyzed at several different levels to determine their true impact.

Despite the apparently more punitive thrust of the new legislation, no clear policy direction …

Judicial Reasoning And Social Change, David A. Dittfurth

Faculty Articles

Some have begun to doubt whether courts adequately respond to recent social problems. Formulated rules, principles, and statutes govern a case in court, and these commanding communications addressed to judges theoretically guide and control the decision-making process. Rules, although often imprecise, are subjected to the scrutiny of the legal profession, which is trained to interpret their meaning and possible application in different fact situations. This, in turn, promotes a high degree of social and political stability since there is less ambiguity as to what constitutes permissible or required behavior.

Attitudes, social institutions, language, and critical decision making are all factors …