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Full-Text Articles in Law
The Arbitration Of Private Commercial Disputes Between Residents Of Texas And Mexico., Wayne I. Fagan, Carlos Gabuardi Arreola
The Arbitration Of Private Commercial Disputes Between Residents Of Texas And Mexico., Wayne I. Fagan, Carlos Gabuardi Arreola
St. Mary's Law Journal
This paper evaluates whether the Texas International Arbitration Act (TIAA) will be a helpful addition to the laws governing arbitration of private commercial disputes between residents of Texas and Mexico. Owing to differences among cultures, languages, and legal systems, attorneys in the United States and in Mexico are turning to binding arbitration for the resolution of international disputes. Texas enacted an International Arbitration Act in 1989 to foster expanded international trade and facilitate resolution of international commercial disputes through conciliation and arbitration. Proponents of international arbitration argue it is the method of choice for resolution of private commercial disputes due …
The Meat And Potatoes Of The North American Free Trade Agreement., Ruth K. Agather, Timothy N. Tuggey
The Meat And Potatoes Of The North American Free Trade Agreement., Ruth K. Agather, Timothy N. Tuggey
St. Mary's Law Journal
Agricultural trade has always been particularly susceptible to governmental intervention and imposition of protectionist barriers. This Article explores the evolution of agricultural trade regulation between the United States and Mexico culminating in the proposed North American Free Trade Agreement (NAFTA). First, the Article reviews the existing regulatory framework governing United States-Mexico agricultural trade. The Article then highlights major, proposed revisions to this regime under the NAFTA and offers perspectives on the effect of these revisions upon the United States’ agricultural industry sectors. This analysis includes a commodity reference guide, which highlights specific commodity trade sectors and the NAFTA treatment of …
Foreign Investment In Mexico From The Perspective Of The Foreign Investor., Hope H. Camp Jr., Jaime Alvarez Garibary, C. Lee Cusenbary Jr.
Foreign Investment In Mexico From The Perspective Of The Foreign Investor., Hope H. Camp Jr., Jaime Alvarez Garibary, C. Lee Cusenbary Jr.
St. Mary's Law Journal
A factor contributing to the continuation of the economic revolution in Mexico has been, and will continue to be, foreign investment. The liberalized foreign-investment regulations and the positive attitude of the Foreign Investment Commission (FIC) in approving foreign investment proposals promote a more favorable environment for foreign investors. The Mexican government recently completed negotiating the NAFTA, a proposed free-trade agreement with the United States and Canada. The government is now considering what additional actions may be required to compete successfully with those other nations trying to attract scarce investment funds. Opportunities for foreign investors in Mexico are brighter than they …
Summary Of The Convention Between The Government Of The United States Of America And The Government Of The United Mexican States For The Avoidance Of Double Taxation And The Prevention Of Fiscal Evasion With Respect To Taxes On Income., Raul S. Moreyra
St. Mary's Law Journal
To prevent double taxation and income tax evasion, the Mexico and United States governments signed a convention in September 1992. The convention establishes when businesses may be subject to either United States or Mexico tax liabilities. Key to the application of the convention is the concept of permanent establishment. Permanent establishment is the designation given to a business situated in Mexico that transacts operations for a United States enterprise. This designation determines which nation, the United States or Mexico, will collect taxes from the business. If the business is a permanent establishment, the Mexican government will collect taxes. The types …
The North American Free Trade Agreemet And United States Employment., Roger W. Wallace, Max Scoular
The North American Free Trade Agreemet And United States Employment., Roger W. Wallace, Max Scoular
St. Mary's Law Journal
The North American Free Trade Agreement (NAFTA) will create new opportunities for United States firms and workers while simultaneously protecting United States workers over a 15-year timeframe. The benefits of NAFTA include eliminating conditions that currently encourage or require United States firms to invest south of the border, establishing free trade in services, and eliminating non-tariff barriers which impede United States merchandise exports to Mexico. Furthermore, NAFTA would provide an improved and expanded regional trade and investment base resulting in a boost to the global competitiveness of US products. NAFTA would also increase trade liberalization with Mexico and maintain Mexico …
The Legal Dilemma Of Groundwater Under The Integrated Environmental Plan For The Mexican-United States Border Area., M. Diane Barber
The Legal Dilemma Of Groundwater Under The Integrated Environmental Plan For The Mexican-United States Border Area., M. Diane Barber
St. Mary's Law Journal
This paper will explore the dilemma of implementing an appropriate legal format to best guide proposals for resolution of groundwater contamination. It will review groundwater under the Integrated Environmental Plan for the Mexico-United States Border Area (the Plan) and examine groundwater law in Mexico and in the four border states from a historical perspective. It will consider existing agreements between the two countries and propose adoption of the Bellagio Draft Treaty as the only legally viable means of achieving long-term remedial groundwater solutions. This paper, however, will also note isolated situations may be effectively addressed by the IBWC Minute, pending …
Mexico's Accession To The Gatt: A Catalyst At Odds With The Outcome., John M. Vernon
Mexico's Accession To The Gatt: A Catalyst At Odds With The Outcome., John M. Vernon
St. Mary's Law Journal
The history behind Mexico’s accession to the General Agreement on Tariffs and Trade (GATT) sheds light on Mexico’s progression toward improved bilateral trade relations with the United States. Mexico embarked on its modernization and reform path with its accession to the GATT in 1987. The recent initialing of the North American Free Trade Agreement (NAFTA) by Canada, Mexico, and the United States is a symbolic event in the continued globalization of the world economy. The trilateral NAFTA is revolutionary because of Mexico’s participation. Part II of this article addresses Mexico’s progression toward accession to the GATT. Part III provides an …
Contracting In Mexico: A Legal And Practical Guide To Negotiating And Drafting., Rona R. Mears
Contracting In Mexico: A Legal And Practical Guide To Negotiating And Drafting., Rona R. Mears
St. Mary's Law Journal
This Article is intended as a primer in contracting for the United States attorney counseling clients doing business in Mexico. Thus, this Article begins by surveying the legal foundations of contracting in Mexico. This includes basic contract principles in Mexico’s civil-law system, the distinction between civil and commercial contracts, and procedural formalities applicable to contracts in Mexico. Following the introduction is a discussion of successful contract negotiations in Mexico, including certain cultural factors and Mexican business customs which can affect negotiations. This section includes suggestions for preparing for negotiations and managing the negotiation process to obtain the best result. Next, …
The Texas Employer's Liability In Tort For Injuries To An Employee Occurring In The Course Of The Employment., David W. Robertson
The Texas Employer's Liability In Tort For Injuries To An Employee Occurring In The Course Of The Employment., David W. Robertson
St. Mary's Law Journal
The focus of this Article is tort suits by employees, or their families, based on personal injury or death occurring in the course and scope of the worker’s employment. If an injury does not occur in the course and scope of employment, the defendant’s status as employer becomes irrelevant; the lawsuit is a common-law tort action, and the defendant has all of the common-law defenses. In 1989 the Texas Legislature repealed the former workers’ compensation law and replaced it with the new Texas Workers’ Compensation Act. The new Act took effect on January 1, 1991. The essentially voluntary nature of …
Agricultural Trade Wars: A Threat To The Gatt And Global Free Trade., Thomas J. Schoenbaum
Agricultural Trade Wars: A Threat To The Gatt And Global Free Trade., Thomas J. Schoenbaum
St. Mary's Law Journal
Agriculture, today, is the center of a set of multi-dimensional international controversies and crises. International agricultural strife threatens the future of the global free-trade system. This strife soured relations between the United States and its principal allies and trading partners: Canada, the European Community (EC), and Japan. The agricultural trade controversy is at the heart of the bitter stalemate of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations. The deadlock over farm trade called into question the very future of the GATT as an international organization. Controversies over agriculture also endanger approval of the recently …
Tending The Bar In Texas: Alcoholism As A Mitigating Factor In Attorney Discipline., Patricia Sue Heil
Tending The Bar In Texas: Alcoholism As A Mitigating Factor In Attorney Discipline., Patricia Sue Heil
St. Mary's Law Journal
This Comment describes the nature and scope of alcoholism and chemical dependency in the legal profession. It reviews the current state of the law regarding alcoholism as a mitigating factor in attorney discipline. Addictive illnesses manifest themselves in ways which leave afflicted attorneys unable to practice law in accordance with professional rules of conduct. The majority of attorney-discipline cases involve alcoholism or chemical dependency. An attorney whose illness remains untreated will likely become the subject of grievance-committee investigations. For disciplinary cases involving alcoholism, a suggested analysis includes establishing a nexus between illness and misconduct. Additionally, it includes a causal connection …
Transracial Adoption In Texas: Should The Best Interests Standard Be Color-Blind., Jo Beth Eubanks
Transracial Adoption In Texas: Should The Best Interests Standard Be Color-Blind., Jo Beth Eubanks
St. Mary's Law Journal
Legislative amendments must go further than limiting race from being a primary factor in adoptions; amendments must eliminate race as an acceptable factor. Diverging opinions of “race matching” in foster care and adoption exist. Administrative policies regulating adoption hold that same-race placement, between the adoptive parent and child, is a primary consideration when awarding custody in Texas. Basing child placement on the race or ethnicity of the parties involved raises serious constitutional concerns. The best interest standard is the predominant method in determining child placement, for both custody and adoption proceedings. The premise of the best interest standard is prioritization …
A License To Kill: The Categorical Exemption Of The Mentally Retarded From The Death Penalty., David L. Rumley
A License To Kill: The Categorical Exemption Of The Mentally Retarded From The Death Penalty., David L. Rumley
St. Mary's Law Journal
This Comment will show there is no merit to the argument the Eighth Amendment prohibits the imposition of capital punishment on all persons considered mentally retarded. This Comment begins with an overview of the historical treatment of mental disabilities, articulating the levels of mental deficiency required for exculpation of criminal responsibility. Next, this Comment discusses the characteristics of persons with mental retardation. This Comment will also discuss the recently enacted statutes’ use of I.Q. tests for determinations of mental retardation. In analyzing these statutes, it becomes apparent a person’s I.Q. should not be prima-facie proof of mental retardation, although state …
Judging In The Quiet Of The Storm., Shirley S. Abrahamson
Judging In The Quiet Of The Storm., Shirley S. Abrahamson
St. Mary's Law Journal
Justice Benjamin Cardozo evaluates the elements he believes motivate judges in deciding cases in The Nature of the Judicial Process. Judge Cardozo focuses primarily on common-law courts deciding common-law cases. Although state-court dockets cover a wider variety of topics today and the legal landscape has changed, The Nature of the Judicial Process remains influential. The basis of Judge Cardozo’s approach is to first extract principles from past cases and apply them to new fact situations. Cardozo refers to this process as the method of philosophy. As precedent cannot readily solve all new disputes, this process may require judges select from …
Proof Of Attorney's Fees In Texas., Scott A. Brister
Proof Of Attorney's Fees In Texas., Scott A. Brister
St. Mary's Law Journal
In Texas, the complex and confusing rules defining proof of attorney’s fees require simplification. Texas, like many other states, follows the American Rule, meaning the plaintiff and defendant each pay their own attorney’s fees. The United States is the only common-law jurisdiction and virtually the only industrialized democracy following the American Rule. Two primary justifications support following the American Rule. First, the American Rule supports individuals seeking a judicial remedy by removing the obstacle of paying an opponent’s legal fees. Second, it reduces potential litigation, attendant time and expense that would be necessary to dispute legal fees if they were …
Framing A Texas Bill Of Rights Argument., James C. Harrington
Framing A Texas Bill Of Rights Argument., James C. Harrington
St. Mary's Law Journal
As federal courts have allowed individual rights to diminish, the Texas judiciary nurtures state constitutional jurisprudence. Texas has a unique history requiring special care in approaching the construction and presentation of arguments utilizing the Texas Constitution or Texas Bill of Rights. The state constitution evolved over six revisions resulting with the eventual ratification of the final version in 1876. A confluence of goals ultimately resulted in a document where the bill of rights appears in Article I and by specifically framing individual liberties as affirmative rights rather than restrictions of government power. Four modes of interpretation are typically employed when …
Expert Witness Fees In Federal Diversity Cases., Wade P. Webster
Expert Witness Fees In Federal Diversity Cases., Wade P. Webster
St. Mary's Law Journal
Even with the increasing complexity of litigation and the increased utilization of expert witnesses to provide expensive evidence on narrow scientific and technical issues, Congress still limits compensation of expert witnesses to only forty dollars per day, the same rate as ordinary fact witnesses. The justification for the low rate is that the witness fee statute was not intended by Congress to compensate witnesses fully for their lost time and income. Presumably this same reasoning also applies to expert witnesses. The problem with this reasoning, unlike law witnesses who may be compelled by subpoena, individual litigants must pay the fees …
Use Of Excessive Physical Force Against An Inmate May Constitute Cruel And Unusual Punishment Even Though The Prisoner Does Not Suffer Significant Injury., Anthony A. Avey
St. Mary's Law Journal
In Hudson v. McMillian, the Supreme Court held that use of excessive physical force against an inmate may constitute cruel and unusual punishment even though the prisoner does not suffer any significant injury. The Eighth Amendment has evolved significantly since its adoption in 1791, becoming a complex line of authority which over time expanded the rights of criminals and convicts. Recent cases have attempted to mold the varying Eight Amendment standards into a more cohesive legal doctrine. These efforts were meant to clarify the doctrine of cruel and unusual punishments; however, the divergent interpretations of these decisions rendered Eighth Amendment …
Enactments Altering Or Reallocating Elected Officials' Powers Do Not Directly Relate To Or Affect Voting And Are Therefore Not Subject To Judicial Or Administrative Preclearance Under Section 5 Of The Voting Rights Act Of 1965., Sharon N. Humble
St. Mary's Law Journal
In Presley v. Etowah County Comm’n, the Court held enactments altering or reallocating elected officials’ powers do not directly relate to or affect voting. Therefore, not subject to judicial or administrative preclearance under Section 5 of the Voting Rights Act of 1965. However, the Court’s holding in Presley, that the changes at issue must directly relate to voting, contradicts the Court’s earlier holdings that indirect or minor changes affecting voting must meet Section 5 preclearance requirements. In Presley, the Court limited the coverage of Section 5 by holding that enactments reallocating elected officials’ decision-making authority do not require judicial or …
Congressional Reform: Can Term Limitations Close The Door On Political Careerism., Julia C. Wommack
Congressional Reform: Can Term Limitations Close The Door On Political Careerism., Julia C. Wommack
St. Mary's Law Journal
Addressing Congressional woes requires reform. Entrenched incumbency is a detriment to the legislative system. Although the enactment of initiatives restricting Congressional terms limits signal voters agree, better alternatives exist. The only prerequisites found in the Constitution for serving in Congress are age, residency, and citizenship. While the twenty-second amendment proscribes the presidential office limit maximum as two terms, no such limitations exist for a congressman or congresswoman. Sitting incumbents have substantial advantages over their challengers. Incumbents success ratio exceeds 80% in Senate races and is approximately 90% for elections in the House of Representatives. Congressional term limitations attempt to eliminate …
Criminal Trespass And The Exclusionary Rule In Texas., Paul R. Stone, Henry De La Garza
Criminal Trespass And The Exclusionary Rule In Texas., Paul R. Stone, Henry De La Garza
St. Mary's Law Journal
In State v. Hobbs, the Texas Fourth Court of Appeals held a warrantless intrusion by police onto private property to obtain evidence constitutes criminal trespass under Section 30.05 of the Texas Penal Code. The resulting evidence falls within the exclusionary rule and this article considers whether this protection, which goes beyond constitutional guarantees, is necessary or desirable. The first part of this paper reviews existing federal and state constitutional protections against unreasonable searches. Next, the paper analyzes the history and purpose of criminal trespass and the exclusionary rule in Texas. Finally, the paper considers a question the court of appeals …
Private Property And Russia's Leap Of Faith., Douglas R. Haddock
Private Property And Russia's Leap Of Faith., Douglas R. Haddock
St. Mary's Law Journal
Popular notions of property are enshrined in constitutional protections which seem to make quite clear society’s emphasis on the individual’s preeminence in matters of property. Americans have never been able to accept the “socialist ownership” notions of the Soviet Union and other socialist countries as a viable scheme of property. It is probably irrefutable that the application of socialist ownership principles in the Soviet Union has been less efficient than the American model of private ownership. Yet, it is reactionary to entirely condemn the idea of socialist ownership and conclude the downfall of the Soviet Union proved the “rightness” of …
Property And Small-Scale Privitization In Russia., Richard C. Schneider Jr.
Property And Small-Scale Privitization In Russia., Richard C. Schneider Jr.
St. Mary's Law Journal
Knowing who owns what suddenly became important in Russia because of dramatic economic and market reforms of the Yeltsin government. The transfer of property, from the state to the private sector is at the heart of the reforms. It is generally recognized the “foundations of a market-based economic system are property rights and private ownership.” The purposes of this article are to (1) summarize reforms which successfully introduced a scheme of private ownership in Russia, as demonstrated by the Nizhny Novgorod experiment, and (2) discuss those property rights which remain unclear. Accordingly, the second and third parts of the article …
The Filing Of An Indictment Against A Criminal Defendant Activates His Sixth Amendment Right To A Speedy Trial, Notwithstanding The Fact That The Defendant Had No Knowledge Of The Indictment Until The Time Of His Arrest., Ronna A. Laidley
St. Mary's Law Journal
In Doggett v. United States, the Supreme Court held the filing of an indictment against a defendant activates his Sixth Amendment right to a speedy trial, notwithstanding the defendant not knowing of the indictment until his arrest. The right to a speedy trial serves to vindicate the rights of individuals who have incurred impediments to their personal liberty because of governmental negligence. The Court stated the Speedy Trial Clause aims to prevent undue and oppressive pre-trial incarceration, limit the anxiety accompanying public accusation, and diminish delays that might cripple a defendant’s ability to prepare an adequate defense. Since Doggett suffered …
Consent Decrees Resulting From Institutional-Reform Litigation May Be Modified Upon Showing A Significant Change In Law Or Fact And A Modification Appropriately Tailored To That Change., Christy J. Lindsay
St. Mary's Law Journal
In Rufo v. Inmates of Suffolk County Jail, the Court held that courts may modify consent decrees resulting from institutional reform litigation upon showing a significant change in law or fact and a modification appropriately tailored to that change. The case of Swift v. United States set a strict standard for modification of consent decrees, requiring movants to demonstrate extreme, unexpected hardship and oppression. However, there is a modem trend toward adopting a more flexible standard. The Court deems the “flexible test” as particularly appropriate in the case of the institutional reform consent decree because of its speculative, long-term nature. …
Revisiting Standards Of Review In Civil Appeals., W. Wendell Hall
Revisiting Standards Of Review In Civil Appeals., W. Wendell Hall
St. Mary's Law Journal
Applying and defining the accurate standard of review determines how likely an appeal will be successful. While the proper standard of review may be easy to identify, applying the standard of review to a case is often problematic. The standards define the interactions between trial and appellate courts by distributing the power of review throughout the judicial branch. The standards of review also limit a court’s authority to determine an error by a trial court, and whether the error warrants reversal. The standard sets the requirements of substantive law and provides a means for appellate judges to weigh arguments. This …