Law Commons^™

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Articles

The survey that follows highlights the most important developments of 2020 dealing with domestic and international sales of goods, personal property leases, payments letters of credit, documents of title, investment securities, and secured transactions.

Lawyers, Mistakes, And Moral Growth (Reviewing Mike H. Bassett, The Man In The Ditch: A Redemption Story For Today), Vincent R. Johnson

Faculty Articles

In the literature of legal ethics, relatively little is said about the psychic turmoil that lawyers face while anticipating or defending a grievance, malpractice claim, or criminal charge. Even less is said about how lawyers who are found guilty of violating professional standards should go about rebuilding their reputations and personal lives after such proceedings have run their course, often with embarrassing results having been made public. Against this bleak backdrop, a dazzlingly introspective and hopeful book about lawyers and their mistakes-and about their suffering and possible moral growth-has been published.

Fraud On The Court And Abusive Discovery, David R. Hague

Faculty Articles

Unbeknownst to many, federal courts have the power under the Federal Rules of Civil Procedure to set aside judgments entered years earlier that were obtained by “fraud on the court.” Fraud on the court, however, can take many forms and courts and commentators agree that it is a nebulous concept. The power to set aside a judgment requires courts to strike a balance between the principles of justice and finality. A majority of courts require a showing, by clear and convincing evidence, of intentional fraudulent conduct specifically directed at the court itself. This standard is flawed. And courts that have …

Legal Malpractice In International Business Transactions, Vincent R. Johnson

Faculty Articles

International business transactions are often unavoidably linked to specialized areas of law. Lawyers increase their risk of committing legal malpractice when representing international clients in business transactions because they may find themselves in a precarious position by accepting work they are inexperienced to perform. Moreover, a client may expand into international waters and their lawyer may not be cognizant of the legal consequences. While malpractice may be asserted through negligence, fraud, breach of contract and other failures of standard of care, failure to know the law is no excuse. However, the standard of care depends on whether the defendant acted …

Expanding The Ponzi Scheme Presumption, David R. Hague

Faculty Articles

Ponzi schemes and other investment frauds inevitably end up in bankruptcy or receivership, leaving behind numerous victims—many of whom invested their life savings in the scheme without any knowledge of its fraudulent nature. Although trustees and receivers can sometimes recover some of the fraudulently acquired funds from the assets of the perpetrators, in most cases, those assets fall woefully short of the victims’ losses. This leads to fraudulent transfer lawsuits (claw-back actions) against those who are suspected to have profited from the wrongdoing.

A transfer is fraudulent if it was made with the actual intent to defraud, but actual fraud …

Economic Justice And The Internal Point Of View, Adam J. Macleod

Faculty Articles

The West is in a tumult about money. In the United States, the Tea Party movement and the Occupy Wall Street movement captured the public's attention, sounding themes of fiscal irresponsibility and material inequality, respectively. Political negotiations over the so-called "fiscal cliff," the debt ceiling, taxes, and entitlement spending, have kept these themes before the public eye. In Europe, the protests have been more dramatic, and the declarations of national leaders that the European Union is in no danger of disintegrating have sounded at times suspiciously forceful.

Despite all of the exhortations that lawmakers should do something, the public debates …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

The Fifth Circuit’s determination of a passive investor’s equity interest in a limited liability company as “securities” brings this class of investors under the protection of the Texas Securities Act (“TSA”). The TSA recognizes vicarious liability theories of aiding and abetting liability and control person liability, which hold secondary parties accountable for their actions. During the Survey period, several cases found secondary parties with positions of control or who met the elements of common law fraud culpable. In Fernea v. Merrill Lynch Pierce Fenner & Smith, Inc., the court found that a business could be liable for an employee’s actions …

Corruption In Education: A Global Legal Challenge, Vincent R. Johnson

Faculty Articles

In every educational institution, in every country and generation, there is a struggle between corrupt practices and the continuing quest for high ethical standards. An educational institution is poorer if its members engage in corrupt practices. Such misfeasance wastes limited resources, demoralizes participants, and adversely affects productivity. The nature of this corruption is multi-faceted, and observes no geographic boundaries. It exists in every culture.

In some of these cases, educational corruption can be quite subtle. This is true where conduct that is neither criminal, fraudulent, nor a breach of fiduciary duty nevertheless undercuts the moral foundations of the educational enterprise. …

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’ …

Comment: The Ninth Amendment: A Constitutional Challenge To Corporal Punishment In Public Schools, David R. Hague

Faculty Articles

The Supreme Court's refusal to resolve the conflict over corporal punishment in public schools perpetuates the uncertainty over children and parents' legal rights. The use of corporal punishment in public schools unconstitutionally abridges parents' right to direct the upbringing of their children because it forces parents to accept the emotional and physical marks that corporal punishment leaves on their children. In 1977, the Supreme Court addressed the constitutionality of corporal punishment in Ingraham v. Wright. The Court held that the cruel and unusual punishment clause of the Eighth Amendment applied only to criminal punishments and thus provided no protection against …

Distinguishing The Concept Of Strict Liability In Tort From Strict Products Liability: Medusa Unveiled, Charles E. Cantú

Faculty Articles

The justifications for strict products liability and other cases of strict liability in torts are different and distinct. The United States judiciary has limited strict liability in tort law to seven distinct scenarios: (1) animals that are trespassing, are domesticated but vicious, or are wild by nature; (2) fact situations involving ultra-hazardous activities; (3) nuisance; (4) misrepresentation; (5) vicarious liability; (6) defamation; or (7) a workman’s compensation statute.

Strict liability is imposed for harm caused by animals capable of inflicting extensive harm. It also justifies liability for ultra-hazardous activities on the basis that an individual undertakes an activity that is …

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 …

Texas Annual Survey: Securities Regulation, George Lee Flint Jr

Faculty Articles

The Texas Legislature passed Sunset Legislation that distinguished between securities dealers and investment advisors that allowed the Texas Securities Act (“TSA”) to comply with national trends in securities regulation. The court struggled with definitions of “control person” and “evidence of indebtedness.” However, the Sunset Legislation allowed the expanded Board to submit emergency cease and desist orders and to conduct surprise inspections of registered dealers and sellers of securities. Violation of a cease and desist order became a criminal offense.

The Sarbanes-Oxley Act increased the existing statute of limitations under the federal securities laws for private causes of action involving claims …

Bajakajian: New Hope For Escaping Excessive Fines Under The Civil False Claims Act, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Ante-Mortem Probate: A Viable Alternative, Aloysius A. Leopold, Gerry W. Beyer

Faculty Articles

Most jurisdictions within the United States currently utilize the post-mortem model of probate. Under this theory, an individual of legal age and of sufficient mental health plans for the distribution of his bounty at death. These distribution plans are then formalized by being scribed into his last will and testament, which then awaits the death of its writer so that at the time of probate, it can be read once again to proclaim donative intent and assure that the estate is distributed in accordance with the testator’s desires.

While this theory of probate sounds proper, experience has revealed that in …

Introduction, Bernard D. Reams Jr.

Faculty Articles

Volume Two of Immigration and Nationality Law Review continues to represent a centralized annual forum for the paramount articles concerning American immigration laws. In addition to the law review articles selected by the editor for inclusion in this second volume, two original essays by practitioners in immigration law are featured. Mark Mancini examines excludability for lack of a valid labor certification as a species of fraud, and Dan P. Danilov reviews and discusses recent changes regarding nonimmigrant and immigrant visas for workers, businessmen, managers and investors. The Review’s goal remains that of providing the practicing lawyer and legal researcher with …