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Lawnotes, The St. Mary's University School Of Law Newsletter, St. Mary's University School Of Law Oct 2005

Lawnotes, The St. Mary's University School Of Law Newsletter, St. Mary's University School Of Law

Law Notes

No abstract provided.


Standing To Sue: Extending Third-Party Standing To Physician-Providers To Enforce The Medicaid Act., Alejandro R. Almanzan Sep 2005

Standing To Sue: Extending Third-Party Standing To Physician-Providers To Enforce The Medicaid Act., Alejandro R. Almanzan

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.


Religion And Housing For The Homeless: Using The First Amendment And The Religious Land Use Act To Convert Religious Faith Into Safe, Affordable Housing., David L. Abney Sep 2005

Religion And Housing For The Homeless: Using The First Amendment And The Religious Land Use Act To Convert Religious Faith Into Safe, Affordable Housing., David L. Abney

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.


Crossing The Line Of Color: Revisiting The Best Interests Standard In Transracial Adoptions., Tanvi Nagarsheth Sep 2005

Crossing The Line Of Color: Revisiting The Best Interests Standard In Transracial Adoptions., Tanvi Nagarsheth

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.


Texas Needs More Drug Courts., Bryan S. Oathout Sep 2005

Texas Needs More Drug Courts., Bryan S. Oathout

The Scholar: St. Mary's Law Review on Race and Social Justice

Drug courts are the nation’s newest legal development in the war on drugs. These courts attempt to stop drug abuse through a treatment-based alternative court which focuses on an offender’s addiction and decluttering the courts. The main goal of drug courts is rehabilitation, not punishment. Drug courts help diminish the cost of putting drug-abusing offenders into our criminal justice system which causes prison and jail overcrowding. Fighting drug abuse also drains our economic resources. Since the implementation of drug courts in 1989, over seventy percent of drug-abusing offenders have either successfully completed the drug court program or are ...


Innocent Until Proven Guilty - Not If You're Teaching Me: A Texas Teacher's Right To Procedural Due Process., Daniel Austin Ortiz Sep 2005

Innocent Until Proven Guilty - Not If You're Teaching Me: A Texas Teacher's Right To Procedural Due Process., Daniel Austin Ortiz

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.


Lawnotes, The St. Mary's University School Of Law Newsletter, St. Mary's University School Of Law Apr 2005

Lawnotes, The St. Mary's University School Of Law Newsletter, St. Mary's University School Of Law

Law Notes

No abstract provided.


The Wrong Solution: An Examination Of Present Bush's Proposed Temporary Worker Program., Tory A. Cronin Mar 2005

The Wrong Solution: An Examination Of Present Bush's Proposed Temporary Worker Program., Tory A. Cronin

The Scholar: St. Mary's Law Review on Race and Social Justice

In 2004, President George Bush offered a new proposal to provide temporary work permits to undocumented immigrants. His proposal, however, falls short of his goals to create an immigration system which serves the American economy and reflects the American Dream. This temporary worker program would provide labor for positions which Americans are not filling currently. For some reason, Americans seem averse to holding certain jobs even though these jobs are readily available. President Bush’s proposal, which he asked Congress to draft, alleviates pressure on American employers who wish to fill low-demand jobs with foreign laborers. The proposal accomplishes this ...


Strengthening Mortgage Lending Discrimination Safeguards: The Requisite Need For Modernizing The Community Reinvestment Act., Giselle R. Finne Mar 2005

Strengthening Mortgage Lending Discrimination Safeguards: The Requisite Need For Modernizing The Community Reinvestment Act., Giselle R. Finne

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.


The Ku Klux Klan Act And The Civil Rights Revolution: How Civil Rights Litigation Came To Regulate Police And Correctional Officer Misconduct., Alan W. Clarke Mar 2005

The Ku Klux Klan Act And The Civil Rights Revolution: How Civil Rights Litigation Came To Regulate Police And Correctional Officer Misconduct., Alan W. Clarke

The Scholar: St. Mary's Law Review on Race and Social Justice

Modern civil rights litigation stems from the Ku Klux Klan Act, otherwise known as the Civil Rights Act of 1871. Congress codified this Act in the United States Code under Section 1983 of Title 42. No other law is more central to present day police and correctional officer accountability. The Civil Rights statute effectuates broad constitutional protections set in place in the aftermath of the Civil War. Congress designed this Act to change over time and intertwine with a continuing history of expanding rights. Section 1983 provides a remedy to any person who experienced another person, acting under the color ...


Deep Freeze: Islamic Charities And The Financial War On Terror., Erich Ferrari Mar 2005

Deep Freeze: Islamic Charities And The Financial War On Terror., Erich Ferrari

The Scholar: St. Mary's Law Review on Race and Social Justice

A balance between anti-terror legislation and civil liberties must be struck. The United States’ “financial war on terror,” following the attacks on September 11, 2001, has had negative consequences for global philanthropy. Charities supplying aid to Muslims in the Middle East and Central Asia have been affected the most, thwarting the acceptance of aid where it is needed. Legislation like the International Emergency Economic Powers Act (IEEPA) has allowed the government to freeze the assets of certain Islamic charities that allegedly aid and abet terrorism. Under this Act, the President has the power to regulate international economic dealing. Subsequent amendments ...


The Need For An Innocence Network In Texas., Matthew D. Sharp Mar 2005

The Need For An Innocence Network In Texas., Matthew D. Sharp

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas must establish an innocence network to ensure crime lab accountability standards are enforced. The multitude of crime lab scandals around the United States demonstrate why the current system of accountability, self-policing, should be reimagined as one more similar to that of a manufacturer and a consumer. Like manufacturers, crime labs are in the best position to ensure the accuracy of any results. Reshaping the system of accountability in this way would ensure that those responsible for handling evidence, handle it with the utmost care and provide accurate results. Innocence Projects generally adhere to one of three different organizational paradigms ...


The Ghost In The Law School: How Duncan Kennedy Caught The Hierarchy Zeitgeist But Missed The Point, Stephen M. Sheppard Jan 2005

The Ghost In The Law School: How Duncan Kennedy Caught The Hierarchy Zeitgeist But Missed The Point, Stephen M. Sheppard

Faculty Articles

No abstract provided.


Curiouser And Curiouser: Involuntary Medications And Incompetent Criminal Defendants After Sell V. United States, Dora W. Klein Jan 2005

Curiouser And Curiouser: Involuntary Medications And Incompetent Criminal Defendants After Sell V. United States, Dora W. Klein

Faculty Articles

The government should not place a defendant to whom it is administering involuntary medications in front of a jury. The test the Supreme Court created in Sell v. United States will likely result in the administration of involuntary medications to incompetent defendants in more than rare instances. Given the importance of the right to a fair trial, and the threat to this right posed by administering involuntary medications, the Supreme Court understandably cautions in its decision in Sell that the instances in which the government will be justified in administering such medications for the purpose of rendering a defendant competent ...


Informal Rules, Transaction Costs, And The Failure Of The “Takings” Law In China, Chenglin Liu Jan 2005

Informal Rules, Transaction Costs, And The Failure Of The “Takings” Law In China, Chenglin Liu

Faculty Articles

The enforcement of China’s new takings law has failed. In the unbalanced tug-of-war between individual homeowners and deep pocketed developers, the government sided with the latter by changing zoning plans to fit commercial development, authorizing forced evictions, deploying judicial police to execute eviction orders, lowering compensation standards, instructing courts not to hear cases involving demolitions, blocking class actions, and more. Many Chinese scholars argue that lackluster enforcement can be remedied by a well-drafted property code. However, applying the New Institutional Economics’ (NIE) theory on institutions to the enforcement failure associated with the takings law draws attention to informal complaints ...


The Court Of Appeals For The Fifth Circuit 2003-2004 Insurance Decisions: A Survey And An Empirical Analysis, Willy E. Rice Jan 2005

The Court Of Appeals For The Fifth Circuit 2003-2004 Insurance Decisions: A Survey And An Empirical Analysis, Willy E. Rice

Faculty Articles

The Fifth Circuit Court of Appeals decided twenty-four insurance-related appeals between the survey period of June 2003 through May 2004. Those cases originated in nine federal district courts. The overwhelming majority of appeals concerned the interpretation and enforcement of insurance contracts. Barring one case of first impression, most involved very familiar procedural and substantive conflicts.

This year, federal preemption questions and conflicts over subject matter jurisdiction appeared in several cases. The Fifth Circuit also decided six class-action or class-certification cases, and the court decided two conflicts involving allegedly widespread racial and ethnic discrimination in the sale and marketing of various ...


Fattening Foods: Under Products Liability Litigation Is The Big Mac Defective?, Charles E. Cantú Jan 2005

Fattening Foods: Under Products Liability Litigation Is The Big Mac Defective?, Charles E. Cantú

Faculty Articles

Excessive consumption of fast food may produce negative results, but it does not render fast food products, like the McDonald’s Big Mac, defective. While no product is technologically perfect, and any product can cause injury, American jurisprudence has always held purveyors of defective food liable. The question is whether fattening foods, such as the Big Mac, are defective under a strict products liability theory.

The cornerstone of this cause of action requires a product to be defective, which may stem from: (1) mis-manufacturing, where the product enters the stream of commerce in an unintended condition; (2) mis-marketing, where the ...


Erisa: Fumbling The Limitations Period, George Lee Flint Jr Jan 2005

Erisa: Fumbling The Limitations Period, George Lee Flint Jr

Faculty Articles

The Supreme Court designed the LMRA rule, adopted in 1966, based on legislative history suggesting that the LMRA lacked a need for uniformity in litigating employee benefit plan matters. Congress changed this conclusion when it adopted ERISA in 1974. Thus, Congress preempted state law insofar as it relates to employee benefit plans. The Supreme Court has specifically stated that this need for uniformity extends to ERISA causes of action and awards under them. The Supreme Court spelled out a three-step process to determine whether to use a uniform federal statute of limitations: (1) whether the federal cause of action demands ...


Justice Tom C. Clark’S Legacy In The Field Of Legal Ethics, Vincent R. Johnson Jan 2005

Justice Tom C. Clark’S Legacy In The Field Of Legal Ethics, Vincent R. Johnson

Faculty Articles

Justice Tom C. Clark served as this nation’s Attorney General and as a Supreme Court Justice during a pivotal time in this nation’s history; however, his greatest legacy is the tremendous impact he and the Clark Report, whose development he oversaw, has in the area of lawyer discipline and ethics. Prior to the Clark Report, there existed a “scandalous situation” with respect to lawyer discipline; however, in the subsequent decades, revolutionary change has occurred. That change is largely attributable to Justice Clark, whether directly or indirectly, as was found in 1992 by the American Bar Association in its ...


The Growing Role Of Fortuity In Texas Criminal Law, Gerald S. Reamey Jan 2005

The Growing Role Of Fortuity In Texas Criminal Law, Gerald S. Reamey

Faculty Articles

Texas’ recent departure from culpability based crimes now means luck plays a bigger role in the punishment for these crimes. Texas has departed from the traditional notion of punishment based on individual fault, and has arrived at a place where these “new” ways of conceptualizing criminal responsibility adequately and satisfactorily account for the interests served by a more restrictive definition of criminal fault. Traditionally, criminal responsibility attached only when mens rea combined with volitional conduct--or the withholding of some required act--to produce a public harm.

In Texas, there seems to be a trend to punish actors for the harm they ...


Disciplinary Evolution And Scholarly Expansion: Legal History In The United States, Michael H. Hoeflich, Stephen M. Sheppard Jan 2005

Disciplinary Evolution And Scholarly Expansion: Legal History In The United States, Michael H. Hoeflich, Stephen M. Sheppard

Faculty Articles

In the United States, the dawn of the twenty-first century has ushered in a period of both transformation and expansion in the study and teaching of legal history. In less than a quarter century, the teaching of legal history, both in law schools and in undergraduate and graduate history programs, has mushroomed from a rather esoteric subject to one that now is considered mainstream.

The American Society for Legal History, the major professional organization of legal historians in the United States, now has a core membership in excess of 1000, and its annual meeting fills two days with lectures, seminars ...


Cybersecurity, Identity Theft, And The Limits Of Tort Liability, Vincent R. Johnson Jan 2005

Cybersecurity, Identity Theft, And The Limits Of Tort Liability, Vincent R. Johnson

Faculty Articles

Tort law is the best vehicle for allocating the risks and spreading the costs of database intrusion. It can incentivize database possessors (“possessors”) and data subjects to minimize the harm associated with breaches of database security while also balancing each party’s interests. Life is built upon computerized databases and the information of those databases is subject to hackers and other cyber-threats, which can cause catastrophic damage. It is hard to identify hackers; however, a better object for recovery is likely the possessors who fail to prevent or reveal a security breach.

The law governing database possessors’ liability is far ...


Fighting Epidemics With Information And Laws: The Case Of Sars In China (Book Review), Vincent R. Johnson, Brian T. Bagley Jan 2005

Fighting Epidemics With Information And Laws: The Case Of Sars In China (Book Review), Vincent R. Johnson, Brian T. Bagley

Faculty Articles

In Chinese Law on SARS, Chenglin Liu recounts the tale of China’s efforts to cope with the recent SARS epidemic. The outbreak of SARS coincided with the full session of the 10th National People’s Congress, which elected a new Central Government in response to governmental failures in dealing with the crisis. The new government’s “proactive” approach to addressing the epidemic was to enact new legislation, republish an important law, and issue authoritative interpretations of existing criminal law provisions.

Liu offers a savvy analysis of why China’s centralized framework initially impeded the fight against SARS, and discusses ...


Estudio Comparativo De La Formacion De Contratos Electronicos En El Derecho Estadounidense Con Referencia Al Derecho International Y Al Derecho Mexicano, Roberto Rosas Jan 2005

Estudio Comparativo De La Formacion De Contratos Electronicos En El Derecho Estadounidense Con Referencia Al Derecho International Y Al Derecho Mexicano, Roberto Rosas

Faculty Articles

The author presents the underlying fundamental contractual principles in American law, and in this respect, tire Uniform Commercial Code, with particular emphasis in how electronic transactions are regulating, and therefore in the Uniform Computer Information Transaction Act, the Uniform Electronic Transactions Act, and the Electronic Signatures in Global and National Commerce Act. Concerning international law, the United Nations Convention on Contracts for the International Sale of Goods and concerning Mexican law, with reference to the Commerce Code and the Federal Civil Code.


Federal Rules Update: Who Makes The Rules?, David A. Schlueter Jan 2005

Federal Rules Update: Who Makes The Rules?, David A. Schlueter

Faculty Articles

There are a number of amendments to the Federal Rules of Criminal Procedure and Evidence which were approved and would become effective as of December 1, 2005. The amendment to Criminal Rule 12.2 permits the court to exclude evidence on a defendant’s mental condition if the defense failed to submit a mental examination. The amendment to Criminal Rules 29, 33, and 34 all concern the timing of requests for extensions of time. Criminal Rule 45 will be amended to conform with the changes to Rules 29, 33, and 34. The amendment to Criminal Rule 32.1 provides a ...


Law Fragments, Emily A. Hartigan Jan 2005

Law Fragments, Emily A. Hartigan

Faculty Articles

The contrast between the portrayal of Christianity and the treatment of earth-based religions by dominant legal discourse is illustrated throughout history. The true images of “saturated auratic [or] sacred elements-become-images” accompanies the division of history into fragments. The fragmented image is particularly important when it arises from a suppressed history or marginalized persons—these fragments are necessary to resist totalitarianism.

One way to see the call for “explosive fragments” is to acknowledge that the culture in the United States is already in ruins. Part of that dissolution is the loss of hegemony by white-male-European culture which can be seen in ...


The Laws Of War In The Pre-Dawn Light: Institutions And Obligations In Thucydides’ Peloponnesian War, Stephen M. Sheppard Jan 2005

The Laws Of War In The Pre-Dawn Light: Institutions And Obligations In Thucydides’ Peloponnesian War, Stephen M. Sheppard

Faculty Articles

This Essay, in honor of Oscar Schachter, discusses Thucydides’ account of the Peloponnesian War, not only glimpsing into the events surrounding the conflict but also considering how the sparring Greek city-states understood and manifested laws of war. This article describes numerous customs, practices, and procedures including respect for truces, ambassadors, heralds, trophies, and various forms of neutrality the ancients adhered to during times of conflict.

The Greek city-states and their warriors recognized and enforced obligations concerning a city-state’s right to war (jus ad bellum) and conduct in war (jus in bello). While the ancients’ laws of war were always ...


Children And The First Amendment Symposium: Officials’ Obligations To Children: The Perfectionist Response To Liberals And Libertarians, Or Why Adult Rights Are Not Trumps Over The State Duty To Ensure Each Child’S Education, Stephen M. Sheppard Jan 2005

Children And The First Amendment Symposium: Officials’ Obligations To Children: The Perfectionist Response To Liberals And Libertarians, Or Why Adult Rights Are Not Trumps Over The State Duty To Ensure Each Child’S Education, Stephen M. Sheppard

Faculty Articles

Lawmakers must care more to educate children than to cater to their parents. While parents and the state both have roles in childhood development, the difficulty is finding the proper balance. Lawmakers must decide who should determine exposure of children to new and different ideas. Arguments that limit exposure to ideas should be pursued with the good of a child as the desired end, and not the means to some other end. These arguments fall into two categories: negative arguments and affirmative arguments. Affirmative arguments are less likely to be made with ulterior motives in mind. In the spirit of ...


Regulating Sars In China: Law As An Antidote?, Chenglin Liu Jan 2005

Regulating Sars In China: Law As An Antidote?, Chenglin Liu

Faculty Articles

Severe Acute Respiratory Disease (SARS) is caused by a coronavirus, and as of this writing has no known vaccine or cure. Generally, the disease starts with a high fever, headaches, body aches, and mild respiratory symptoms. SARS spreads through respiratory droplets produced by an infected person when he or she coughs or sneezes or through physical contact.

The disease was first identified in a southern province of China in November of 2002, and quickly spread to twenty-seven different countries. In March of 2003, the World Health Organization (WHO) declared SARS a global health threat. In China, the economic and social ...


Los Nuevos Derechos En El Sistema Jurídico De Estados Unidos, Roberto Rosas, Bill Piatt Jan 2005

Los Nuevos Derechos En El Sistema Jurídico De Estados Unidos, Roberto Rosas, Bill Piatt

Faculty Articles

No abstract provided.