Law Commons^™

The Parent-Child Privilege: A Response To Calls For Adoption, David A. Schlueter

Faculty Articles

A popular move to recognize and codify a parent-child privilege has surfaced, despite rejection by a majority of the courts that have considered the issue. Reminded of the horrors accompanying totalitarian systems that require children to testify against their parents, some commentators have asserted that adoption of such a privilege will promote the success of the family relationship in this country and avoid the trauma of family members testifying against each other at trial.

The momentum for adopting a parent-child privilege seems to have been generated by a few courts and a number of commentators who see the privilege as …

Shouting Incitement In The Courtroom: An Evolving Theory Of Civil Liability Comment., Michael P. Kopech

St. Mary's Law Journal

Civil incitement is an evolving theory, intended to ascribe liability to a publisher. Civil incitement charges that the contents of a publication proximately caused the plaintiff’s physical injury, thus holding publishers civilly liable for the physical consequences of their communications. However, the validity of civil incitement as an actionable tort clashes with the principles of freedom of speech and press embodied within the First Amendment. Incitement, as a successful cause of action, demands following the standards set out in Brandenburg v. Ohio. Prior attempts to hold publishers civilly liable for the physical consequences of their communications have rarely survived motions …

A New Tort For Texas: Breach Of The Duty Of Good Faith And Fair Dealing., Evelyn T. Ailts

St. Mary's Law Journal

The concept of good faith and fair dealing as a general derivative contractual obligation remains unrecognized in Texas. However, in English v. Fischer the Texas Supreme Court recognized a duty of good faith and fair dealing exists in some contracts. Subsequent courts, including the Texas Supreme Court, have refused to apply a purely contractual obligation of good faith and fair dealing in every case. Instead, courts have recognized a good faith duty as arising out of “special” relationships of the contracting parties rather than being inherent in the contract itself. The courts focus on “special relationships” as a determinative of …

Do We Need A Parent-Child Privilege, David A. Schlueter

Faculty Articles

This article addresses proposals to adopt a parent-child privilege, and notes that currently incriminating statements made between parents and children are admissible as evidence. However, there is a popular move to urge codification of a parent-child privilege that would protect any statements made or actions observed within the parent-child relationship. Evidentiary privileges are generally disfavored because they potentially block otherwise relevant evidence, but some relationships, such as the parent-child relationship, deserve assurance that shared confidences will be protected.

To overcome the reluctance to adopt yet another privilege, proponents of the parent-child privilege typically offer a number of justifications. These include …