Law Commons^™

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

Many courts rendered opinions during the Survey period affecting the reach of the Texas Securities Act (“TSA”). The Texas Supreme Court acknowledged the TSA’s reach over dealers selling from Texas to non-residents of the state, as well as over registration of securities sold. In contrast, the Fifth Circuit continued Congress’s campaign to limit regulation of interest rate swaps to federal regulatory bodies by defining “security” in the TSA to exclude interest rate swaps. In Kastner v. Jenkens & Gilchrist, P.C., a Texas appellate court determined that lawyers are not subject to liability for aiding and abetting when they merely prepare …

Criminal Rules Amendments Effective As Of December 2007, David A. Schlueter

Faculty Articles

A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2007. Criminal Rule 11 was amended to conform the rule to the Supreme Court’s decision in United States v. Booker, which held that the sections in the federal sentencing statute that made pleas mandatory violated the fifth and sixth constitutional amendments. Criminal Rule 32 was made to conform to United States v. Booker by making it clear that the court may require the probation office to include in the presentence report information relevant to factors set out in 18 U.S.C § 3553(a). The …

Data Security And Tort Liability, Vincent R. Johnson

Faculty Articles

Established tort principles carefully applied to the contemporary problems of cybersecurity and identity theft can perform a key role in protecting the economic foundations of modern life. Tort law offers an appropriate legal regime for allocating the risks and spreading the costs of database intrusion-related losses. It can also create incentives, on the part of both database possessors and data subjects, to minimize the harm associated with breaches of database security.

In considering this field of tort law, it is useful to differentiate three questions. The first issue is whether database possessors have a legal duty to safeguard data subjects’ …

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …

A Tribute To Ernest A. Raba, Dean (1946 – 1978), St. Mary’S University School Of Law, Aloysius A. Leopold

Faculty Articles

Dean Ernest A. Raba was instrumental in establishing and building St. Mary’s University School of Law during his thirty-two year tenure as Dean of the Law School. He obtained accreditation for the law school from the American Bar Association and membership in the Association of American Law Schools. He obtained financing for three new buildings with the help of Governor John Connally, and then President Johnson. He also started the framework for $7.5 million grant from the Sarita Kenedy East Foundation for a new law library, and a new faculty building was named in his honor. In 1967, he helped …

The Chinese Takings Law From A Comparative Perspective, Chenglin Liu

Faculty Articles

When acquiring private property, governments may exercise one of three options: confiscation, consensual exchange, or eminent domain. Under the first approach, the government can confiscate private land without seeking consent from private owners and without paying compensation to them. Alternatively, under the consensual exchange approach, the government can only acquire private property through arm’s-length negotiations in an open market. It requires the government to obtain consent from private owners and pay mutually agreed purchase prices, determined by both the government as a willing buyer and private owners as willing sellers. The third approach is through eminent domain, which denotes when …

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 …

All For One: A Review Of Victim-Centric Justifications For Criminal Punishment, Adam J. Macleod

Faculty Articles

Disparate understandings of the primary justification for criminal punishment have in recent years divided along new lines. Retributivists and consequentialists have long debated whether a community ought to punish violators of legal norms primarily because the violator has usurped communal standards (the retributivist view), or rather merely as a means toward some end such as rehabilitation or deterrence (the consequentialist view). The competing answers to this question have demarcated for some time the primary boundary in criminal jurisprudential thought.

A new fault line appears to have opened between those who maintain the historical view that criminal punishment promotes the common …

A Gift Worth Dying For?: Debating The Volitional Nature Of Suicide In The Law Of Personal Property, Adam J. Macleod

Faculty Articles

Suicide poses difficult and foundational problems for the law. Those who most highly value personal autonomy, those who believe in the inviolability of human life, and those who remain uncommitted on end-of-life issues, all must settle challenging questions about suicide before advancing upon the more complex terrain of physician-assisted suicide, euthanasia, and infanticide. And the way in which a society fashions legal responses to suicidal choices reveals much about the society's cultural commitments and legal assumptions.

The bodies of insurance law, tort, and health care law are also among those areas of the law in which lawmakers reserve special exceptions …

American Legal Ethics In An Age Of Anxiety, Michael S. Ariens

Faculty Articles

The thesis of my article, “American Legal Ethics in an Age of Anxiety,” is that the historical development of American legal ethics was regularly accompanied by an anxiety within the profession. In general, I suggest the legal profession’s understanding of its ethical precepts has been molded and reshaped during periods of professional anxiety. The profession’s understanding of legal ethics changed dramatically during various crises in the 19th century, exemplified by the different approaches taken by David Hoffman in the mid-1830s, George Sharswood in the mid-1850s, and David Dudley Field in the early 1870s. In each case, however, the triggering event …

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

In January 2008 and June 2008, the Standing Committee on the Rules of Procedure and Evidence authorized publication for comment on a number of rules of criminal procedure. The amendment to Criminal Rule 5 would include a requirement that, in deciding whether to release or detain a defendant, the court must consider the “right of any victim to be reasonably protected from the defendant.” The change to Criminal Rule 12.3 states that the name and address of the victim should not be automatically disclosed to the defense. Criminal Rule 15 would permit an unavailable witness to be deposed outside of …