Law Commons^™

The Shape Of Property, Chad J. Pomeroy

Faculty Articles

“Shape” means “a mode of existence or form of being having identifying features” or the “form or embodiment” of something. Form and feature, in turn, arise from pressure and time. Property law has a shape all its own: it exists as a unique body of law, with distinctive conventions and rules. And that shape, those conventions and rules, derive from a variety of pressures that have, over the centuries, molded property law into its present form. This paper seeks to understand and explain the shape of a particular area of property law – that of property forms.

Of course, this …

Mandamus Review Of The Granting Of The Motion For New Trial: Lost In The Thicket, Richard E. Flint

Faculty Articles

A trial court’s broad discretion in granting a new trial has been one of the mainstays of Texas jurisprudence since early statehood. Historically, this discretion was not subject to review through the ordinary appellate processes. This principle remains inviolate today, as the granting of a new trial is an interlocutory order from which the appellate courts of Texas do not have jurisdiction. Furthermore, the use of an original mandamus proceeding to compel a trial court to set aside the granting of a new trial has had only limited application.

However, in response to the case of In re Columbia Medical …

The Texas Supreme Court: A Narrative History, 1836–1986 (Book Review), Michael S. Ariens

Faculty Articles

The historical material and resources available for American legal historians is both too much and too little. Hundreds of published case opinions became thousands of opinions by the end of the 1820s, leading lawyers to conclude that no one could know the entirety of the law. Yet this cascade of information is also too little, because the work of treatise writers and magazine editors of the time was ruthlessly focused on then-existing legal concerns.

For these reasons, James L. Haley works within difficult strictures in his book, The Texas Supreme Court: A Narrative History, 1836–1986. Because his story is about …

Using A Civil Suit To Punish/Deter Sponsors Of Terrorism: Connecting Arafat & The Plo To The Terror Attacks In The Second Intifada, Jeffrey F. Addicott

Faculty Articles

Civil litigation has fantastic potential to punish acts of terror and to deter future acts. However, there exists a conundrum regarding the establishment of the factual connection between the regime that secretly sponsors or supports terror and the actual acts of terror. To hold a regime responsible for terrorism, accountability must be established.

The ongoing civil action of Sokolow v. The Palestine Liberation Organization (PLO) perfectly illustrates this dilemma—on the one hand the offending regime disavows acts of terror while on the other hand it secretly supports and orchestrates terror. However, Yasser Arafat, President of the Palestinian National Assembly (PNA), …

Trademarks Under The North American Free Trade Agreement (Nafta), With References To The Current Mexican Law, Roberto Rosas

Faculty Articles

The introduction of Mexico into the international trademark arena may significantly influence the future of the North American Free Trade Agreement (“NAFTA”). NAFTA established a reliable and efficient system for trademark registration and protection. This system not only protects owners of trademarks, but also helps consumers identify and purchase goods or services that meet their needs.

Despite its membership in NAFTA, Mexico is in the process of internationalizing its Intellectual Property protections. It is evident that among countries, economic improvement is generally the main motivation to form Free Trade Agreements, and Mexico's case is no different. Mexico has pursued an …

Lost And Found: David Hoffman And The History Of American Legal Ethics, Michael S. Ariens

Faculty Articles

David Hoffman was a successful Baltimore lawyer who wrote the first study of American

law in 1817 and authored the first maxims of American legal ethics. Yet for more than a century after his death, Hoffman was a forgotten figure to American lawyers. Beginning in the late 1970s, Hoffman was re-discovered, and his writings on legal ethics have been favorably cited.

How and why was Hoffman “lost” to American law for over a century, and why he was “found”? Hoffman was lost to history because his view of ethics was premised on republican virtue, specifically the concept of honor. A …

Mismatch: How Affirmative Action Hurts Students It’S Intended To Help, And Why Universities Won’T Admit It (Book Review), Michael S. Ariens

Faculty Articles

Mismatch is one of the most important books about law and public policy published recently. The authors, Richard H. Sander and Stuart Taylor, Jr., offer a provocative and deeply researched conclusion: empirical evidence strongly suggests that affirmative action in the admission of African-Americans and Hispanics to selective colleges and law schools is more harmful than helpful.

The problem of underrepresentation of African-Americans and Hispanics in the American legal profession is a continuing problem. But the work of Richard Sander strongly indicates that relying on the power of affirmative action has generated deleterious effects for those this “solution” was designed to …

The Collini Case: A Novel (Book Review), Michael S. Ariens

Faculty Articles

Ferdinand von Schirach is a German criminal defense lawyer who has previously published two vivid and brilliant short story collections. His latest book, The Collini Case: A Novel, like his short stories, gives the reader telling details that offer insights into the human condition. But The Collini Case seems less interested in its characters than in teaching about the continuing stain of Germany’s past. This leads von Schirach to use stock figures who have suffered stock tragedies and who engage in stock actions. The novel is simply not realistic enough to suspend disbelief, and only barely avoids being a melodrama. …

The Agony Of Modern Legal Ethics, 1970–1985, Michael S. Ariens

Faculty Articles

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

King Tut And Tahrir Square: The Egyptian Revolution Of 2011 And The Advantage Of Viewing Cultural Heritage Destruction Through A Right To Culture Lens, Zoe Niesel

Faculty Articles

No abstract provided.

Tocqueville's Nightmare: The Administrative State Emerges In America, 1900-1940 (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

The Dignity Of The Human Person: Catholic Social Teaching And The Practice Of Criminal Punishment, Dora W. Klein

Faculty Articles

The moral foundation that supports the Catholic Church's opposition to the death penalty is wide and deep. This Article proposes that despite the oft-repeated maxim that "death is different," the same foundation that supports efforts to abolish the death penalty can also support those who seek to achieve other reforms in the practice of criminal punishment.

Think Twice: Charging Orders And Creditor Property Rights, Chad J. Pomeroy

Faculty Articles

What do you do? As a lawyer (or prospective lawyer), I mean – what do you do (or what will you do) in exchange for a salary or hourly fee? You will probably be expecting a lot of money for your services; so what, exactly, is it that you will do to justify that payment?

The answer, of course, is varied because lawyers do lots of different things. And, among these activities, there are some things that only lawyers can do. Chief among those is suing people. Suing people is something that only lawyers do because states do not generally …

Escaping Liability Via Forum Non Conveniens: Conocophillips's Oil Spill In China, Chenglin Liu

Faculty Articles

In 2011, a year after British Petroleum (BP) 's oil spill in the Gulf of Mexico, ConocoPhillips's subsidiary in China caused a massive oil spill in the Bohai Sea. A group of fishermen suffered severe property damage as a result of the oil spill. After a failed attempt to have their complaint heard in a Chinese court, the fishermen sued ConocoPhillips in the United States District Court in Houston, Texas. It is very likely that the Houston District Court will deem the Chinese courts the more appropriate forum for this case and grant ConocoPhillips's motion for forum non conveniens dismissal. …

Against The Profit Motive: The Salary Revolution In American Government, 1780–1940 (Book Review), Michael S. Ariens

Faculty Articles

In Against the Profit Motive, Nicholas R. Parrillo expertly explains how and why state and federal governments moved from paying their employees fees to paying them salaries. The book offers insights into the history of government finance and administrative law, shifting dramatically in time, subject matter, and geography. The book begins with a helpful fifty-page introductory summary and then is divided into two parts, each of which considers a type of activity that generated fees for government officers: facilitative payments and bounties. Further, Against the Profit Motive illustrates, in the disparate areas of criminal law enforcement, tax collection, and naval …

A Death At Crooked Creek: The Case Of The Cowboy, The Cigarmaker, And The Love Letter, By Marianne Wesson (Book Review), Michael S. Ariens

Faculty Articles

Marianne Wesson’s A Death at Crooked Creek tells the story of one of the most intriguing mysteries in American legal history. For evidence teachers, and possibly even law students, Mutual Life Ins. Co. v. Hillmon is a classic nineteenth century mystery story. The case raises the question: Was the deceased John W. Hillmon, who had recently taken out the extraordinary sum of $25,000 in life insurance, or was it Frederick Adolph Walters, an itinerant who had left Iowa a year earlier?

In addition to teaching at the University of Colorado School of Law, Wesson is the author of three mystery …

Punitive Damages, Chinese Tort Law, And The American Experience, Vincent R. Johnson

Faculty Articles

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more …

Father, Son, And Constitution: How Justice Tom Clark And Attorney General Ramsey Clark Shaped American Democracy, By Alexander Wohl (Book Review), Vincent R. Johnson

Faculty Articles

In Father, Son, and Constitution, Alexander Wohl brings to life two major figures of American law: Tom C. Clark and his son, Ramsey Clark. The story focuses primarily on the middle third of the twentieth century and the many heated constitutional challenges that arose during that era.

With an engaging literary style, Wohl perceptively examines not merely the lives and careers of Tom and Ramsey Clark, but the key roles they played in the issues of their day. The story proceeds from Pearl Harbor and World War II, to the Cold War, to desegregation, to the problems that beset President …

Canon 1095 And The Dignitas Connubii: The Role Of Consent, Incapacity, And Psychic Anomalies In Cases Of Matrimonial Nullity, Roberto Rosas

Faculty Articles

This Article will focus on the following points: (1) the essential elements of marriage; (2) the basic principle of matrimonial consent; (3) the nature of consent; (4) acts through which consent is formed; (5) matrimonial nullity in Canon Law; (6) Canon Law and the Dignitas Connubil (Dignitas); and (7) recent jurisprudence concerning matrimonial nullity. It aims to shed light and clarify paragraphs 2 and 3 of Canon 1095 of the Code by making clear how the causes of defect of discretion of judgment and the inability to assume the essential obligations due to some sort of psychic disorder or anomaly …

The Law Of The Church In The Nullity Of Marriage Due To Causes Of Psychic Nature, Roberto Rosas

Faculty Articles

Introduction. - I. The principles of marriage, matrimonial consent and nullity of marriage in Canon Law. - II. The ordinary process of a declaration of nullity of marriage. The enhancement to the Code of Canon Law by the Instruction Dignitas connubii. - 1. Summary of the principal functions of the Dignitas connubii. - 2. Connections of Dignitas connubii to can. 1095 of the Code. - Ill. Recent Rotal Jurisprudence and the Dignitas connubii. - 1. Doctrine and case law. - a. Grave defect of discretion of judgment. - b. Incapacity to assume the essential obligations of marriage. - 2. Recent …

Minimizing The Costs Of Patent Trolling, Vincent R. Johnson

Faculty Articles

Patent trolling is a serious legal problem. In addressing patent trolling, disclosure requirements and periodic reporting standards will be critical to minimizing the costs of this controversial practice.

Patent trolling, at its most problematic, generally refers to patent infringement allegations made by non-practicing entities (NPEs) which produce essentially no products or services except in connection with the buying and selling of patent rights. The targets of these patent “trolls” often lack basic information that is relevant to their evaluation of the claims against them, and policymakers know too little about specialized patent assertion entities and their impact on innovation and …