Law Commons^™

Twenty-Five Years Of Strict Product Liability Law: The Transformation And Present Meaning Of Section 402a, Charles E. Cantú

Faculty Articles

Twenty-five years ago, the American Law Institute had just published Section 402A of the Restatement (Second) of Torts. As a consequence of this new and innovative rule, the theory of recovery in the area of defective products was expanded from a system based on principles of negligence and warranty to one that also included the doctrine of strict product liability. The promulgation of Section 402A marked the beginning of a growing revolution in the field of plaintiff-oriented litigation in which parties and courts frequently center their inquiry upon the defectiveness of the product and issues related thereto, rather than on …

Ordinary Sacraments, Emily A. Hartigan

Faculty Articles

Richard Parker is a true force in constitutional thought, and his Populist commitment finds fertile landscape. However, there is something missing from his account of populism—the role of reflection and the fear of God in human affairs. Parker never deals with the fact that “the people” believe in God. Despite the intellectualist drive to separate God from politics, most Americans do not maintain such a wall. Whether under a stultifying separationist doctrine or in a more open pluralism, the people are God-fearing in an increasingly fractured and fascinating way—they are recognizably, fundamentally religious. Parker advocates being in touch with what …

Boyles V. Kerr: The Wrong Decision At The Right Time: Implications For Mental Anguish Damages Under The Dtpa, Charles E. Cantú, Jared Woodfull V

Faculty Articles

Mental anguish jurisprudence has witnessed a tumultuous evolution. Consumer law, as codified in the Texas Deceptive Trade Practices Act, has been uniquely impacted by the evolving law of mental anguish.

Recently, the Texas Supreme Court reaffirmed the standard for recovery of mental anguish damages under the DTPA. In the case of Boyles v. Kerr, the Texas Supreme Court had the opportunity to reconcile mental anguish damages under the DTPA with mental anguish jurisprudence. However, instead of aggressively recognizing one’s interest in their emotional well-being, the court retreated, reversing almost a decade of mental anguish jurisprudence.

This recently reaffirmed standard for …

A New Look At An Old Conundrum: The Determinative Test For The Hybrid Sales/Service Transaction Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

Historically, the concept of strict tort liability was confined to two areas: injuries resulting from dangerous activities, and harm inflicted by wild and/or dangerous animals. However, in 1963, the California Supreme Court held in Greenman v. Yuba Power Products that the theory of strict liability in tort also included products. Then, in 1965, The Restatement (Second) of Torts adopted Section 402A and endorsed the theory of Greenman that strict liability was available as a distinct cause of action in litigation involving injuries caused by defective products.

Though there was some initial confusion associated with the application of some of the …

Jag Corps Poised For New Defense Missions: Human Rights Training In Peru, Jeffrey F. Addicott

Faculty Articles

The National Command Authority has cited the dissolution of the Soviet Union as cause for the United States Military to expand its role. In addition to its traditional role of fighting wars, the military will take on new nontraditional roles promoting human rights and the rule of law throughout the world. These new military missions will include peacekeeping operations, humanitarian interventions, disaster relief missions, counter-drug activities, and nation-building activities.

As part of this initiative, the United States Judge Advocate General’s Corps (JAGC) provides legal assistance to the militaries of several emerging and struggling democracies. A number of foreign armies and …

The Lord In The Law: Reflections On A Catholic Law School, Aloysius A. Leopold

Faculty Articles

The symbiosis between law and morality has played a major role in universities since their formation and is critical to our moral and legal future. Each is dependent on the other, and an attempt to separate the two will seal the fate of our society as a whole. The Catholic law school must ensure that this symbiosis is never broken, but is fulfilled by incorporating relevant new courses and by teaching present classes in light of the Catholic message. Further, Catholic defense clinics should be offered to enrich the lives of others, and priests and nuns should be made available …

Surprised By Law, Emily A. Hartigan

Faculty Articles

This year’s Association of American Law Schools convention provided a genuinely engaging panel discussion between Michael Sandel and Judge Stephen Reinhardt. Michael Sandel, Harvard philosopher of community and the “encumbered self,” delivered his defense of an ethics of appreciation which goes beyond mere toleration, arguing for honor for persons rather than mere dignity. Reinhardt countered by characterizing Sandel’s stuff as the sort of academic theorizing which has nothing much to do with the world, and raised with almost unconscious elegance the main issue, and a deeply troubling concrete dilemma.

Reinhardt noted that Sandel’s portrait of the person did not work …

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …

The Regrettable Rebirth Of The Two-Grant Doctrine In Texas Deed Construction, Laura H. Burney

Faculty Articles

Deed construction has been a perennial task for courts since the Statute of Uses accorded legal approval to written transfers of land in 1536. Unfortunately, two Texas cases, Luckel v. White and Jupiter Oil Co. v. Snow, may signal the rebirth of the dubious two-grant doctrine, which had seen its demise in Alford v. Krum. Under this theory, a multi-clause deed is construed as making separate grants of different types of interests in a particular tract of property or varying sizes of one interest at different times.

The ramifications of the holdings in Luckel and Jupiter Oil expose the inappropriateness …

Face At The Bottom Of The Well (Book Review), Willy E. Rice

Faculty Articles

No abstract provided.

The More Things Change, The More They Stay The Same: The Employment-At-Will Doctrine In Texas, Bonita K. Roberts

Faculty Articles

The Texas Legislature should reject the employment-at-will doctrine in Texas. A carefully crafted new law could be created through the assessment of both the Montana Wrongful Discharge from Employment Act and the Model Employment Termination Act (“META”), approved by the National Conference of Commissioners on Uniform State Law. Texas recognizes common-law and statutory exceptions to the employment-at-will doctrine. However, the statutory and common-law exceptions to the employment-at-will doctrine do not swallow the rule; instead, they constitute random, narrow efforts affording employees few protections while requiring employers to defend their decisions on a costly, piecemeal basis.

The Montana Employment Act protects …

Evolution And Revolution In Family Law, Victoria M. Mather

Faculty Articles

Family law has significantly changed over the last twenty-five years, and certain areas will likely continue to change. Family law tends to follow, rather than lead, social upheaval and adjustment in family decisions and structures. The most important legal changes in family law are a result of massive shifts in American social, political, and economic constructs in the 1960s, 1970s, and 1980s.

Family law will continue to evolve because of three critical developments. First is the expansion of the concept of what constitutes a “family” in the modern context. Next is the treatment of children as autonomous individuals, separate and …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …