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Articles 1 - 30 of 36
Full-Text Articles in Law
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.
Standing To Sue: Extending Third-Party Standing To Physician-Providers To Enforce The Medicaid Act., Alejandro R. Almanzan
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.
Crossing The Line Of Color: Revisiting The Best Interests Standard In Transracial Adoptions., Tanvi Nagarsheth
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
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 still participating …
Innocent Until Proven Guilty - Not If You're Teaching Me: A Texas Teacher's Right To Procedural Due Process., Daniel Austin Ortiz
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.
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 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 …
The Wrong Solution: An Examination Of Present Bush's Proposed Temporary Worker Program., Tory A. Cronin
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 by …
Deep Freeze: Islamic Charities And The Financial War On Terror., Erich Ferrari
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 …
Strengthening Mortgage Lending Discrimination Safeguards: The Requisite Need For Modernizing The Community Reinvestment Act., Giselle R. Finne
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 Need For An Innocence Network In Texas., Matthew D. Sharp
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. …
Determining The Indeterminate Defect., J. Gregory Marks
Determining The Indeterminate Defect., J. Gregory Marks
St. Mary's Law Journal
Abstract Forthcoming.
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
St. Mary's Law Journal
In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
St. Mary's Law Journal
The unpredictability of court decisions on covenants not to compete is an attorney’s nightmare in Texas. The Texas Supreme Court's decision in Light v. Centel Cellular (Light II), holding that trade secrets may serve as independent consideration for a valid covenant not to compete, has only exacerbated the situation. Currently, attorneys and clients alike are at the mercy of judicial unpredictability. Texas courts have managed to muddle their own underlying public policy on covenants not to compete with trade secrets. During the years preceding Light II, Texas courts consistently struck a balance between the legitimate rights of employers to protect …
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
St. Mary's Law Journal
Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
St. Mary's Law Journal
The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. …
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
St. Mary's Law Journal
The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for …
Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo
Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo
St. Mary's Law Journal
Abstract Forthcoming.
The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long
St. Mary's Law Journal
While few in the legal profession would refer to clients as “property”, it is difficult to think some lawyers do not believe they possess something similar to property rights in their retainer agreements with clients. Not surprisingly, a tortious interference claim is a viable option for an attorney who feels that another attorney has wrongfully “stolen” a client or otherwise interfered with the attorney’s “property.” Courts have traditionally been reluctant to hold attorneys liable for litigation conduct that results in harm to adversaries or their attorneys. Plaintiff-attorneys generally have a better chance of succeeding when they complain that another attorney—while …
Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley
St. Mary's Law Journal
Abstract Forthcoming.
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
St. Mary's Law Journal
Oil and gas leases normally do not set a fixed price for calculating royalty payments. Instead, oil and gas leases commonly tie royalty calculations to a more flexible yardstick, including “market value” or “net proceeds”. This flexibility allows the lease relationship to survive any dramatic volatility in oil and gas prices, while the same fixed price may be inadequate in shifting markets. Conversely, the flexibility may place lessors and lessees in a position of inherent conflict. In particular, parties vehemently disagree about the proper location for applying the yardstick. Historically, lessees have enjoyed the better side of the argument; though, …
Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman
Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman
St. Mary's Law Journal
Abstract Forthcoming.
Unintentional Franchising., Mark H. Miller
Unintentional Franchising., Mark H. Miller
St. Mary's Law Journal
The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.
Unconstitutional Delegation Of Prosecutorial Discretion In Texas: The Pollution Of Environmental Violation Deterrents., Suzanne M. Jost
Unconstitutional Delegation Of Prosecutorial Discretion In Texas: The Pollution Of Environmental Violation Deterrents., Suzanne M. Jost
St. Mary's Law Journal
The split amongst Texas officials regarding how to address the growing problem of enforcing environmental laws can most clearly be seen in the legislation surrounding environmental crimes. The most notable aspect of the 2003 amendment to the Texas Water Code (TWC) requires permission from the Texas Commission on Environmental Quality (TCEQ) before criminal charges may be brought against permit holders for criminal violations. The purpose of TCEQ’s administrative penalties is to focus primarily on pushing companies into compliance with the code. Yet, the TWC amendment brings the entire spectrum of polluters, from corporate dumpers to individual litterbugs, under its primary …
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
St. Mary's Law Journal
The Texas judiciary should give “good cause” a single meaning. Ambiguity exists concerning the phrase “good cause” amongst Texas courts. Three different standards of “good cause” currently exist in Texas including: the Stelly/Craddock standard, the Alvarado standard, and the Remington Arms standard. Under the Stelly/Craddock standard—if withdrawal of deemed admissions is requested—“good cause” is required showing the failure was unintentional as a result of an accident or mistake. Under the Alvarado standard—if the request is to offer testimony of a witness who was not timely identified—the court requires a more strict showing of “good cause” not satisfied by an attorney’s …
Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice
St. Mary's Law Journal
Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases. Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
St. Mary's Law Journal
The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the …
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
St. Mary's Law Journal
In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford …
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
St. Mary's Law Journal
Construction is the largest industry in the United States, and some regard the industry as the engine of the nation’s economy. Only the unavailability of unskilled labor can slow the growth of the construction industry in Texas. As such, Texas has welcomed the construction boom and has enacted statutes to accommodate further industry growth. Texas’ first legislative response came in the form of the Residential Construction Liability Act (RCLA). The RCLA alleviated liability for builders incurred under the Deceptive Trade Practices Act (DTPA). In 2003, the Texas Legislature continued to legislate in favor of builders by passing the Texas Residential …
The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan
The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan
St. Mary's Law Journal
Often, the validity of a will is called into question in situations where the testator failed to execute the will in compliance with statutory formalities, although the intent to create a will was present. In Texas, harmless errors in the execution of a will are not excused, and the testator must comply with the statutory formalities set out in the Probate Code. Strict judicial adherence to statutory formalities leads to unjust results in situations where it is relatively clear that the testator intended to create a will but failed to comply with the execution requirements. The failure to comply with …
Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris
St. Mary's Law Journal
Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …