Law Commons^™

Class Of 1994 Incoming Il Law Students, St. Mary's University School Of Law, St. Mary's University School Of Law

Incoming 1L Photos (Facebooks)

Photographs of incoming law students for the St. Mary’s University School of Law, class of 1994

Judicial And Adminstrative Enforcement Of Individual Rights Under The National Labor Relations Act And Under The Labor-Management Relations Act Between 1935 And 1990 - An Historical And Empirical Analysis Of Unsettled Intercircuit And Intracircuit Conflicts, Willy E. Rice

Faculty Articles

This Article is concerned with exploring the extent to which both the National Labor Relations Act of 1935 and the Labor-Management Relations Act of 1947 have protected individual employees' rights in administrative and judicial proceedings.

Dutiful Justice (Book Review), Michael S. Ariens

Faculty Articles

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, …

The Twentieth Annual Kenneth J. Hodson Lecture: Military Justice For The 1990'S - A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

The Kenneth J. Hodson Chair of Criminal Law was established at The Judge Advocate General’s School on June 24, 1971. The chair was named after Major General Hodson, who served as The Judge Advocate General from 1967 to 1971. General Hodson retired in 1971, but immediately was recalled to active duty to serve as the Chief Judge of the Army Court of Military Review. He served in that position until 1974. General Hodson served over thirty years on active duty. During that time, he was active in the American and Federal Bar Associations, and he authored much of the military …

The Illusive Meaning Of The Term “Product” Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

The impact of Section 402A of the Restatement (Second) of Torts had far-reaching effects. The most noticeable of these effects was that strict liability was accepted as a cause of action in almost all cases involving defective products. As a result, there was an explosion of products liability litigation, and suits involving strict liability for defective products soon outnumbered all other tort cases.

Naturally, the vast number of lawsuits caused some confusion. Courts interpreted some terms of Section 402A to include individuals and events not originally mentioned, while other terms, which at first were thought to be clear and concise, …

Erisa: Nonwaivability Of Preemption, George Lee Flint Jr

Faculty Articles

Congress attempted to encourage the growth of private employee benefit plans by drafting the preemption provision in ERISA in an effort to develop the federal common law of employee benefits and discourage varied jurisdictional interpretations. States and federal courts have addressed the issue of preemption waivability with differing results. Some interpret the preemption clause as a waivable defense under a choice of law argument, while others treated preemption as a subject matter jurisdiction issue which cannot be waived.

ERISA’s express language clearly precludes state law causes of action under qualified ERISA plans. Furthermore, the legislative intent of the statute reiterates …

Teaching Transformative Jurisprudence (Film Review), Vincent R. Johnson

Faculty Articles

The Road to Brown is a film that deals with the transformative judicial ruling of Brown v. Board of Education. Many regard this case as the most important holding ever made by a United States court. The Road to Brown offers law professors a superb vehicle for bringing to the classroom the attention to persons, sense of history, and focus on litigation strategy that a great decision demands.

The Road to Brown provides a rich socio-legal-historical perspective on the events that culminated in the 1945 Supreme Court ruling barring racial segregation in public elementary schools. The program blends together photographs, …

Evidence, David A. Schlueter

Faculty Articles

This article addresses some of the more significant evidence cases decided by the Fifth Circuit during the survey period.' Before turning to the cases themselves, it is important to note at the outset that like other federal courts, the Fifth Circuit is generally not inclined to reverse a case on an evidentiary error. It should not be surprising then that in most of the cases which follow, the court implicitly deferred to the decision of the trial judge in deciding whether a certain piece of evidence was admissible.

Bankruptcy Policy: Toward A Moral Justification For Financial Rehabilitation For The Consumer Debtor, Richard E. Flint

Faculty Articles

The central justification for the debtor financial relief provisions of the Bankruptcy Code is founded in a natural law theory of morality. The law reflects reason and conscience, and those fundamental principles of fairness and humanitarianism form the moral dimension of the debtor relief provisions of the Bankruptcy Code. Historically, America has recognized an objective moral dimension to the bankruptcy process, and Congress has continually enacted legislation implementing its fresh start policy, which strives to obtain goals that mirror that moral fiber.

This fiber is composed of two separate but mutually dependent strands of values, intertwined into a coherent plan …

The Power Of Language Beyond Words: Law As Invitation, Emily A. Hartigan

Faculty Articles

Law is an invitation to fuller life, more than a mere instrument of force, coercion, and death, which is imprinted within each person and which animates the ideas of our constitutions and statutes. Our laws should seek to reflect and be unified with God’s Law, and the process towards that end requires disclosure and trust, which, in turn, requires clarity of one’s whole person, which is achieved through prayerfulness.

Much of academia and society only recognizes the evil present in our law and society; however, where there is evil or negativity, goodness and that which is positive must have preceded …

“Make The Ring In Your Mind” (Book Review), Emily A. Hartigan

Faculty Articles

aking All the Difference, by Martha Minow, promised to render the multiple differences of race, gender, disability, and orientation, part of a whole discourse on difference. In this, the book is a success. Yet, the contradiction which Minow’s ideas play with her genre is bothersome. It is not that her way of writing is not valuable. Minow is remarkably lucid. But what she names at the outset—a relational approach, with a sensitivity to boundaries—she does not deliver. That conundrum, and why it seems to be—but is not—the unavoidable dilemma of the gifted female scholar in law today, is worth investigating.

On The Road Of Good Intentions: Justice Brennan And The Religion Clauses, Michael S. Ariens

Faculty Articles

Associate Supreme Court Justice William J. Brennan took the oath of office on October 16, 1956. At the time of Justice Brennan’s appointment to the Supreme Court, the Court had decided only a few cases involving the religion clauses of the first amendment, and judicial interpretation of the religion clauses had been sparing.

In the thirty-four years of Justice Brennan’s tenure, the Court worked several revolutions in religion clause jurisprudence—revolutions guided by a sense of the needs of a changing society. Justice Brennan was one of several architects of a new order in establishment clause interpretation, and was the architect …

Banning The Buttons: Employer Interference With The Right To Wear Union Insignia In The Workplace, John W. Teeter Jr

Faculty Articles

The right for workers to wear union insignia without fear of retaliation in the workplace has been constricted, undermined, and jeopardized by judicial and National Labor Relations Board (“Board”) decisions. As a consequence, at least three problems arise: (1) litigation over this issue increases as the law becomes increasingly opaque; (2) workers are wrongfully denied the opportunity to proclaim their union sympathies; and (3) the Board and courts send an implicit message that the freedom to express union support is a second-class right that employers may override by offering a pretextual justification. This subordination of the right to wear union …

Military Justice For The 1990’S: A Legal System Looking For Respect, David A. Schlueter

Faculty Articles

Noting that the American military justice system is often the subject of criticism and derision, the author explores the criticisms often leveled at the military justice system and targets a number of areas where the system seems most vulnerable, such as size and composition of the courts-martial, the role of the commander in the system and offers suggestions for reform.

On Shared Human Capital, Promotion Tournaments, And Exponential Law Firm Growth (Book Review), Vincent R. Johnson

Faculty Articles

Tournament of Lawyers: The Transformation of the Big Law Firm is part of the scholarly literature that seeks to understand the ongoing metamorphosis of the American legal profession. Authors Marc Galanter and Thomas Palay’s basic argument is that traditional law firm promotion practices make growth in firm size inevitable and such growth is linked to many recent developments. These developments include increased lateral hiring, the creation of tiered partnerships, and the collapse of entire firms. The exponential character of law firm growth means that inevitable structural modifications will be greater than in years past. At the same time, greater dissemination …

Testimony Of Ambassador Carla A. Hills, United States Trade Representative, Before The Subcommittee On Trade, Committee On Ways And Means, U.S. House Of Representatives, June 14, 1990., Editorial Board St. Mary's School Of Law

St. Mary's Law Journal

Abstract Forthcoming.

Mexico's Maquiladora Program: Challenges And Prospects., Matilde K. Stephenson

St. Mary's Law Journal

A Maquila is usually a one-hundred percent foreign-owned assembly or manufacturing operation located in Mexico. They manufacture, process or assemble an array of products under Mexican law. Both the United States and Mexico receive a great deal of economic benefits from employing the maquiladora system, but it can also have some political and social consequences that make the system economically volatile. The viewpoints of both the U.S. and Mexican governments are considered, as well as the U.S. and Mexican industry, in evaluating the system’s overall effect on U.S.-Mexico relations. The general conclusion is that maquiladoras are extremely desirable for labor …

Ethics And Due Diligence: A Lawyer's Perspective On Doing Business With Mexico., Rona R. Mears

St. Mary's Law Journal

The focus of this study is to survey ethical issues faced by legal practitioners in providing legal counsel for international business transactions, with special attention to lawyers counseling clients who are doing business with Mexico. This paper is intended for lawyers who practice in the United States (U.S.), involved in counseling clients outside the U.S. The purpose of this study is to highlight only those issues that raise special difficulties for such a practitioner, and then to provide practical advice on how to avoid ethical problems in U.S.-Mexico transactions. The Model Rules of Professional Conduct (MPRC), the International Code of …

First-To-Invent: A Superior System For The United States., Ned L. Conley

St. Mary's Law Journal

The United States uses the first-to-invent patent system, which is a time-honored system not worth abandoning in pursuit of harmonization. First-to-invent and first-to-file patent systems incentivize different approaches to obtaining a patent. However, a first-to-invent approach is, in part, what has allowed the United States to lead the world in innovation and it should not abandon this approach. The United States patent system is unique when compared to most other patent systems used by democratic, capitalistic, developed nations. A first-to-invent system provides incentive to invent, particularly to inventors who are less well financed. The incentive to innovate is in the …

Recent Developments In Civil Rights Law (As Presented At The Common Cause 20th Anniversary Celebration At St. Mary's School Of Law On November 3, 1990) Address., Archibald Cox

St. Mary's Law Journal

Abstract Forthcoming.

Alamo Lumber And Texas Usury Law: Playing With Fire In The Usury Forest., Terry W. Wright, W. Alan Wright, Scott G. Night

St. Mary's Law Journal

The effect of Alamo Lumber Co. v. Gold, and later cases interpreting third party assumption of debt as interest can be perilous to lenders. Lenders are in the business of offering loans to make money. Lenders achieve profit maximization by charging as much interest as possible in the market. Although economic and market factors are always considerations in a lender’s business, in Texas, lenders must also consider harsh usury laws that restrain the maximum amount of chargeable loan interest. Texas defines interest broadly. Statutes define interest as the receipt of compensation for the detention, forbearance or use of money. The …

Giving The Gift Of Life: A Survey Of Texas Law Facilitating Organ Donation., Eric C. Sutton

St. Mary's Law Journal

Abstract Forthcoming.

Pyrrhic Victories And Glorious Defeats: Why Defendants Are Winning And Plaintiffs Are Losing The Struggle Over Actual Malice And Fictionalized Quotations., Richard A. Gonzales

St. Mary's Law Journal

This article reviews Masson v. New Yorker Magazine, a case of fabricated quotations. The article looks first at the legal background and Supreme Court's development of the actual malice standard. An analysis of the problem through journalistic ethics and investigation of the difficulties confronting libel plaintiffs will follow. Finally, the comment explores the misquotation problem from both a legal and a journalistic perspective.

In Sharp Contrast To The Past: The Demise Of The Per Se Rule Against Vertical Price Fixing., Christopher J. Pettit

St. Mary's Law Journal

Actions by the Department of Justice and the Supreme Court lessening vertical pricing protections under the Sherman Antitrust Act require Congressional intervention. By enacting the Sherman Antitrust Act, Congress intended agreements fixing vertical prices or having the ultimate effect of fixing vertical prices at any level be illegal per se. Vertical pricing agreements set, maintain, stabilize, raise, or depress prices of goods or services among the different levels of the product distribution chain. The Department of Justice (DOJ) has taken positive steps in limiting the per se rule of illegality by failing to pursue allegations of vertical price fixing and …

Erisa Preempts All Texas Causes Of Action That Relate To An Employee Benefit Plan Including The Insurance Code, The Deceptive Trade Practices Act And Common Law., Brent Biggs

St. Mary's Law Journal

Abstract Forthcoming.

Reformers' Regress: The 1991 Texas Workers' Compensation Act., Jill Williford

St. Mary's Law Journal

The revision of the Texas Workers’ Compensation Act will affect most Texas taxpayers and workers. The Act, entering into force January 1, 1991, significantly restructures the preexisting seventy-six-year-old system. Before the advent of workers’ compensation systems employees relied on the court and common-law causes of action as the sole means of recovery. In 1913, Texas enacted one of the first versions of workers’ compensation in the United States. The original act created a system to compensate workers for injuries sustained during employment without regard to fault. Initially the act was elective for employers and mandatory for employees but was later …

Incurable, Reversible Error Occurs Whenever The Jury Feels Animus Toward Or Solidarity With Witnesses Or Litigants Because Of Ethnicity Or Race Due To An Attorney's Suggestions Made During Closing Argument, No Matter How Open Or Subtle And With Finesse Those Suggestions May Be., Glenn D. Levy

St. Mary's Law Journal

Abstract Forthcoming.

The Human Rights Revolution Address., Thomas Buergenthal

St. Mary's Law Journal

Abstract Forthcoming.

Preserving Error On Appeal In Texas Civil Cases: A Practical Guide For Civil Appeals In Texas Article Foreword., John Cornyn Iii

St. Mary's Law Journal

Abstract Forthcoming.

Preserving Error On Appeal In Texas Civil Cases: A Practical Guide For Civil Appeals In Texas., John Hill Cayce Jr.

St. Mary's Law Journal

Fatal procedural errors can prevent appellees from preserving judgements and appellants from seeking review of court decisions on appeal. This article is a practical guide identifying critical concepts necessary to preserve the various rights of appeal. By examining the Texas Rules of Appellate Procedure, the author identifies procedural pitfalls attorneys may face when attempting to preserve appeals to the Texas Supreme Court or the appellate courts of Texas. Although the Texas Supreme Court has endeavored to eliminate procedural traps from civil appeals, a significant number of requests for appeal fail because lawyers do not follow the requirements necessary to preserve …