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Full-Text Articles in Law
Sandbagging Closed Texas Courtrooms With Senate Bill 15: The Texas Legislature's Attempt To Control Frivolous Silicosis Claims Without Restricting The Constitutional Rights Of Silicosis Sufferers., John G. George
St. Mary's Law Journal
In the 1980s, Texas became a focal point for silicosis litigation. Statutes enacted to limit the liability of employers were not broad enough to limit the liability of silica sand suppliers. The increased number of claims are restricting the ability to receive compensation for those who truly deserve it. While the number of deaths has dropped dramatically, the number of claims has increased. Recently enacted Senate Bill 15 (S.B. 15) is the Texas Legislature’s answer to problems created by the large amount of frivolous silica-related claims. The goal of S.B. 15 is to protect the rights of those with silica …
A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon
A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon
St. Mary's Law Journal
Several Texas Supreme Court Justices have recently criticized Texas’s appellate justice system for its failure to provide consistency and the unfairness it produces, namely how litigants are treated differently despite the identical factual circumstances. Despite the warnings of various Texas Justices, neither the Texas Supreme Court nor the Texas Legislature have done much to rectify the lack of uniform justice received by Texas litigants. Most of the proposals to reform the Texas appellate justice systems’ unfairness have focused exclusively on structural changes. While structural changes could help reduce inconsistent “justice”, these reforms fail to address the main substantive problem—Texas’s weak …
Standefer V. State: The Creation Of The Criminal Defendant's Diminished Right To A Trial By A Fair And Impartial Jury., Esperanza Guzman
Standefer V. State: The Creation Of The Criminal Defendant's Diminished Right To A Trial By A Fair And Impartial Jury., Esperanza Guzman
St. Mary's Law Journal
In Texas, the right of an accused to have an impartial jury is firmly grounded in the voir dire process, the definitive goal of which is to empanel a fair and impartial jury. The right to a fair and impartial jury is bolstered by the voir dire examination. There have been large discrepancies over the types of questions which can be asked during the voir dire process. The court’s attempt to simplify the process of differentiating between proper and improper voir dire questions has “muddied the issue” for court participants and has resulted in the deprivation of a criminal defendant’s …
The Unable To Agree Requirement And Texas Condemnation Law: A Critical Analysis Of Hubenak V. San Jacinto Gas Transmission Co.., B. Tyler Milton
The Unable To Agree Requirement And Texas Condemnation Law: A Critical Analysis Of Hubenak V. San Jacinto Gas Transmission Co.., B. Tyler Milton
St. Mary's Law Journal
In Texas, the state constitution requires adequate compensation as a predicate to a taking of private property for a public use. Though an eminent domain cause of action has both a constitutional and statutory basis, the requirement of adequate or just compensation is premised on principles of natural equity and justice. Texas statutorily mandates that a condemner of land must, prior to the institution of a condemnation proceeding, plead and prove the two parties were “unable to agree” on the corresponding compensation due to the landowner. Texas courts interpreted this requirement in the condemnation statute to compel “good faith negotiations” …
Restricting Kelo: Will Redefining Blight In Senate Bill 7 Be The Light At The End Of The Tunnel., Adrianne Archer
Restricting Kelo: Will Redefining Blight In Senate Bill 7 Be The Light At The End Of The Tunnel., Adrianne Archer
St. Mary's Law Journal
In Kelo v. City of New London, the United States Supreme Court extended the public use limitation to its most expansive definition yet. The Kelo decision enhanced the Fifth Amendment takings power by allowing the city of New London, Connecticut, to exercise eminent domain power in furtherance of an economic development plan. Notably, the city’s revitalization plan did not include a claim that the area subject to eminent domain was “blighted.” The Fifth Amendment provides that governments may wield the power of eminent domain and take private property for public use but only with just compensation. Generally, private property can …
Appellate Standards Of Conduct As Adopted In Texas The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Catherine Stone
Appellate Standards Of Conduct As Adopted In Texas The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Catherine Stone
St. Mary's Law Journal
It was not until 1987 that the State Bar of Texas created an Appellate Practice & Advocacy Section. As lawyers began concentrating on appellate law as a specialty, other practitioners began to realize that appellate practice requires a unique skill set. As recognition of this skill set grew, litigators began hiring these specialized lawyers to assist in preserving error at the trial level. Over the years, the need for a more professional approach to the practice of appellate law persisted until the “Standards of Appellate Conduct” (the Standards) was jointly adopted by the Texas Supreme Court and Texas Court of …
A Radical Proposal For Lifetime Professionalism The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Antonio Alvarado
A Radical Proposal For Lifetime Professionalism The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Antonio Alvarado
St. Mary's Law Journal
Undeniably, the economics of law practice motivates the profession and immerses lawyers into a new professionalism paradigm not fully addressed by existing programs and activities. Linking professionalism to economic concerns might be considered heresy by some, yet now is the time to examine why the economic realities of practicing law sometimes cut short the best aspirations for high standards. Both the American Bar Association (ABA) and the State Bar of Texas focus extensively on questions concerning professionalism in the practice of law. Lawyers face significant economic burdens from several sources, and ironically technology does not always make practice easier. Often, …
Hurricane Katrina: The Duties And Responsibilities Of An Attorney In The Wake Of A Natural Disaster The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Brenna G. Nava
St. Mary's Law Journal
Hurricane Katrina ravaged the legal system as well as the corporate world by leaving courtrooms and law firms filled with water. In the storm’s aftermath the luckiest law firms were those large enough to have offices in cities other than those directly affected by the hurricane. Many recent disasters have heavily affected the legal system, including flooded basements, office fires, hard drive crashes, terrorist attacks, tornados or earthquakes. And each new disaster brings different consequences. Those who create disaster plans are better equipped to handle and recover from each new series of setbacks. While various firms and courts made plans …
Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson
Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson
St. Mary's Law Journal
William H. Rehnquist taught for St. Mary’s University School of Law for four summers while serving as the sixteenth Chief Justice of the United States. For two weeks each July in 1991, 1994, 1998, and 2000, Rehnquist lectured on The Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. St. Mary’s has conducted the Institute as an annual five-week summer program at the University of Innsbruck since 1986, with the generous administrative support of that university’s Roman Law Institute. Rehnquist felt welcome in Innsbruck and earned the St. Mary’s …
Sentence Modification In Texas: The Plenary Power Of A Trial Court To Alter Its Sentence After Pronouncement Comment., Andrew L. Johnson
Sentence Modification In Texas: The Plenary Power Of A Trial Court To Alter Its Sentence After Pronouncement Comment., Andrew L. Johnson
St. Mary's Law Journal
Post-sentence plenary power of a trial court is not statutorily defined in Texas criminal law, and its boundaries are not fully delineated. The Texas Court of Criminal Appeals recently added to the definition of plenary power in State v. Aguilera. The definition gives state trial courts the power to modify sentences if the modification is made the same day as the initial sentence before the court adjourns and if it is made in the presence of the defendant, his counsel, and counsel for the State. This holding lessens the sentencing pronouncement’s importance; potentially turning sentencing into a day-long affair. Additionally, …
Getting The Sand Out Of The Eyes Of The Law: The Need For A Clear Rule For Sand Suppliers In Texas After Humble Sand & (And) Gravel, Inc. V. Gomez., Victor E. Schwartz, Mark A. Behrens, Andrew W. Crouse
Getting The Sand Out Of The Eyes Of The Law: The Need For A Clear Rule For Sand Suppliers In Texas After Humble Sand & (And) Gravel, Inc. V. Gomez., Victor E. Schwartz, Mark A. Behrens, Andrew W. Crouse
St. Mary's Law Journal
Health risks associated with the inhalation of silica dust have been known for a very long time. In the United States, the American Foundrymen’s Society has distributed literature addressing silica exposure hazards to its members for over 100 years. For years, litigation against industrial sand manufacturers concerning silica exposure was stable, though recently there has been a marked increase in the number lawsuits. While the number of suits continues to climb, the government reports silica-related deaths have declined dramatically. It appears plaintiffs’ attorneys are manufacturing silica claims using the same lawsuit-generating devices developed during the asbestos context. Tort law recognizes …
2003 Texas House Bill 4: Unanimous Exemplary Damage Awards And Texas Civil Jury Instructions., Patricia F. Miller
2003 Texas House Bill 4: Unanimous Exemplary Damage Awards And Texas Civil Jury Instructions., Patricia F. Miller
St. Mary's Law Journal
Lawmakers and other supporters of tort reform generally describe enacted tort reform legislation as having a positive effect on consumers. But tort reform can create new hurdles for plaintiffs seeking damage awards in civil litigation. The Texas Legislature’s 2003 House Bill 4 (H.B. 4) amendment to the Texas Civil Practice and Remedies Code (Code) represents the most recent example of major tort reform in Texas. It has yet to be seen whether H.B. 4 will meet promised expectations. What is clear is H.B. 4 will adversely affect Texas plaintiffs seeking exemplary (punitive) damages from a jury. The H.B. 4 amendment …
Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot
Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot
St. Mary's Law Journal
There are constitutional limitations that govern attempts to regulate the teaching of terrorism-encouraging ideologies. According to a 1999-2000 study by the National Center of Education Statistics, there are 152 full-time Islamic schools in the United States, schooling about 19,000 students. The primary concern is not that children will be instructed to immediately engage in terrorist acts, but that the teaching of a radical Islamist ideology will predispose them to join radical Islamist terrorist movements and engage in violence. The Free Exercise Clause and parental rights doctrine, however, might not by themselves bar the state from interfering in private education to …
Overcorrecting The Purported Problem Of Taking Child Brides In Polygamist Marriages: The Texas Legislature Unconstitutionally Voids All Marriages By Texans Younger Than Sixteen And Criminalizes Parental Consent., Rosanne Piatt
St. Mary's Law Journal
In the 79th Regular Legislative Session, Texas lawmakers amended and added numerous provisions to both the Texas Family Code and Texas Penal Code relating to the status of marriage. One change was the inclusion in the Family Code of a section voiding a marriage if either party is younger than sixteen years of age. Additionally, legislators included criminal penalties to other laws relating to marriage. Specifically, parents are prohibited from giving consent to the marriages of parties under sixteen, but parents also face third-degree felony charges if they give consent. The legislature voided certain underage marriages in Texas due to …
Acquiring Separate Property On Credit: A Review And Proposed Revision Of Texas Marital Property Doctrine., James W. Paulsen
Acquiring Separate Property On Credit: A Review And Proposed Revision Of Texas Marital Property Doctrine., James W. Paulsen
St. Mary's Law Journal
The character of property acquired on credit is one of the most vexing in Texas marital property law. The apparent black letter rule is that anything acquired by either spouse on credit during the marriage is community property, unless the creditor agrees at the outset to look only to separate property for repayment. The general rule follows naturally from a core principle of Texas law that everything owned by a married person is presumed community when the basic presumption is combined with the “inception of title” doctrine. In a credit transaction, the borrower acquires some legal right to the loan …
Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott
Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott
St. Mary's Law Journal
Because of corporate scandals that shook the business world, legislative, corporate, and public fingers immediately pointed at corporate attorneys for allowing such egregious conduct to occur. In 1983, the American Bar Association (ABA) passed Model Rule 1.13, which promoted the entity theory. Under the entity theory, the organization is the in-house counsel’s only client; and the in-house counsel’s primary duty is to act in the best interest of the organization. Whether the issue is deciding to make an executive compensation disclosure in a proxy statement, taking on a dual role within the organization, acting in compliance with heightened professional responsibility …
Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos
Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos
St. Mary's Law Journal
Uncertainty over conduct which results in disqualification can be costly and the laws relating to disqualification may be widely known but their application is difficult. Rigid application of irrebuttable presumptions and imputation of knowledge may result in disqualification of a client’s chosen counsel. Even if an attorney succeeds in opposing a motion to disqualify, the resulting costs and delay may damage the attorney-client relationship more than if the attorney had simply declined the representation. Motions to disqualify usually arise from conflicts of interest involving former clients. The law of disqualification, in this instance, is well developed and largely based on …