Law Commons^™

Case Watch: Royston, Rayzor, Vickery & Williams Llp V. Lopez, Ramona L. Lampley

Faculty Articles

The Texas Supreme Court effectively gave a “thumbs-up” to attorney-client arbitration agreements in Royston, Rayzor, Vickery, & Williams, LLP v. Lopez, 467 S.W.3d 494 (Tex. 2015), reh’g denied (Sept. 11, 2015). The plaintiff, Frank Lopez, hired Royston, Rayzor to represent him in a divorce. As part of the representation agreement, Lopez agreed to arbitrate any disputes arising out of the attorney-client relationship, but the law firm excluded from the arbitration agreement any claims it might have against Lopez for expenses or fees. Lopez later sued Royston, Rayzor and the firm moved to compel arbitration.

Lopez contended that the arbitration agreement …

Class Of 2018 Incoming Il Law Students, St. Mary's University School Of Law, St. Mary's University School Of Law

Incoming 1L Photos (Facebooks)

Photographs of incoming law students for the St. Mary’s University School of Law, class of 2018

Glass Half Full: The Decline And Rebirth Of The Legal Profession (Book Review), Michael S. Ariens

Faculty Articles

No abstract provided.

Daimler And The Jurisdictional Triskelion, Zoe Niesel

Faculty Articles

No abstract provided.

Post-9/11 Veterans: Welcoming Them Home As Colleagues And Clients, Patricia E. Roberts

Faculty Articles

No abstract provided.

The Pillar: Newsletter Of The St. Mary's University School Of Law Center For Legal And Social Justice, St. Mary's University School Of Law

The Pillar

No abstract provided.

The High Costs Of Incivility, David A. Grenardo

Faculty Articles

Many law students come to law school after being indoctrinated by television and movies, believing that an effective lawyer must be obstreperous, obnoxious, and rude to be successful. Lawyers, they believe, must fight their opponents on every point at every corner if they want to represent their clients zealously and adequately.

Law students must recognize that incivility by lawyers can lead to significant negative consequences for the client, the attorney herself, and the legal system. Law students must also understand that lawyers can treat opposing counsel with civility while still providing robust, vigorous, and adversarial representation for their clients. This …

The Aba Got It Right: Veterans Need Our Help, Patricia E. Roberts

Faculty Articles

No abstract provided.

Brougham’S Ghost, Michael S. Ariens

Faculty Articles

In defending Queen Caroline in the House of Lords, Henry Brougham declared, “[a]n advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other.” Brougham’s ethic of advocacy has been cited repeatedly as stating the American lawyer’s duty of zealous representation of a client. It has often been called the “classic statement” of zealous representation and representing the “traditional view of the lawyer’s role.”

This essay challenges these conclusions. Brougham’s rhetoric was neither a classic statement of the duty of loyalty to …

The Anti-Plaintiff Pending Amendments To The Federal Rules Of Civil Procedure And The Pro-Defendant Composition Of The Federal Rulemaking Committees, Patricia W. Moore

Faculty Articles

For decades, the Civil Rules Advisory Committee (Advisory Committee) has garnered passage of amendments to the Federal Rules of Civil Procedure (FRCP) that have incrementally narrowed discovery in the service of the Advisory Committee's stated effort to combat the alleged "cost and delay" of civil litigation. More of the same are on their way to Congress now. In the classical David-and-Goliath lawsuit brought by an individual person against an institutional defendant, these pending amendments hurt David and help Goliath more than any previous round of amendments to the FRCP. The individual versus institution case, not coincidentally, is the most common …

The Civil Caseload Of The Federal District Courts, Patricia W. Moore

Faculty Articles

This Article responds to changes proposed by Congress and the Advisory Committee on Civil Rules to restrict civil lawsuits by reforming procedure. It argues that while these changes are purported to be based on empirical studies, there is no reference to actual government statistics about whether the civil caseload has grown, whether the median disposition time has increased, or whether the most prevalent types of civil cases have changed. Based on statistics published by the Administrative Office of the United States Courts, this Article shows that the civil docket has actually stagnated, not exploded. It first looks at trends in …

Courts Gone “Irrationally Biased” In Favor Of The Federal Arbitrations Act?—Enforcing Arbitration Provisions In Standardized Applications And Marginalizing Consumer-Protection, Antidiscrimination, And States’ Contract Laws: A 1925–2014 Legal And Empirical Analysis, Willy E. Rice

Faculty Articles

Spanning nearly forty years, the Supreme Court has issued multiple decisions and stated categorically that “judicial hostility to arbitration” was the sole impetus behind Congress’s decision to enact the Federal Arbitration Act of 1925. In fact, before the FAA, systemic trade-specific problems and practices generated heated disputes and widespread litigation among merchants and trade organizations. Thus, to arrest those constituents’ concerns, Congress enacted the FAA. Briefly, under the FAA section 2, arbitration is mandatory if a contractual arbitration provision is valid and a controversy “arises out of the contract.” However, common-law rules of contract formation are equally clear: Standing alone, …

Legal Malpractice In International Business Transactions, Vincent R. Johnson

Faculty Articles

International business transactions are often unavoidably linked to specialized areas of law. Lawyers increase their risk of committing legal malpractice when representing international clients in business transactions because they may find themselves in a precarious position by accepting work they are inexperienced to perform. Moreover, a client may expand into international waters and their lawyer may not be cognizant of the legal consequences. While malpractice may be asserted through negligence, fraud, breach of contract and other failures of standard of care, failure to know the law is no excuse. However, the standard of care depends on whether the defendant acted …

The Fine Print, Ramona L. Lampley

Faculty Articles

A recent study by the Consumer Financial Protection Bureau (“CFPB”), the federal agency tasked with “empowering consumers to take control over their economic lives,” found that more than 50 percent of the market for consumer credit cards had arbitration agreements, and almost 100 percent of storefront payday lending contracts require its customers to take their disputes to binding arbitration. The same study found that most consumers do not know their credit cards have a binding arbitration agreement and that it is not a primary concern for consumers in deciding which credit cards to obtain.

However, almost all arbitration agreements in …

Prior Sexual Misconduct Evidence In State Courts: Constitutional And Common Law Challenges, Michael L. Smith

Faculty Articles

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant's propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal …

A Case For The Electoral College And For Its Faithless Elector, Stephen M. Sheppard

Faculty Articles

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a "minority president" happened with the election of 2000, but it had happened before. The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—through that election was by …

Internprofessional Education, Patricia E. Roberts

Faculty Articles

As legal educators consider how to improve the outcomes of legal education, maximizing the knowledge, skills, and values taught during the law school experience, consideration should be given to increasing interprofessional learning opportunities in the curricula. As Best Practices for Legal Education suggested, the creative thinking necessary for effective problem-solving includes an understanding of interprofessional dimensions of practice, but interprofessional opportunities are still the exception rather than the norm in legal education. Interprofessional legal education intentionally asks law students to blend the knowledge, skills, and values of two or more professions in order to address complex legal problems. Placing students …

Standards Of Legitimacy In Criminal Negotiations, Wesley Macneil Oliver, Rishi Batra

Faculty Articles

Scholarship on negotiation theory and practice is rich and well developed. Almost no work has been done, however, to translate to the criminal context the lessons learned about negotiation from extensive empirical study using the disciplines of economics, game theory, and psychology. This Article suggests that defense lawyers in criminal negotiations can employ tools frequently useful to negotiators in other arenas: neutral criteria as a standard of legitimacy. Judges sometimes exercise a type of discretion analogous to prosecutorial discretion. When they do so, they offer an independent, reasoned, and publicly available assessment of the factors that a prosecutor ought to …

Expanding The Ponzi Scheme Presumption, David R. Hague

Faculty Articles

Ponzi schemes and other investment frauds inevitably end up in bankruptcy or receivership, leaving behind numerous victims—many of whom invested their life savings in the scheme without any knowledge of its fraudulent nature. Although trustees and receivers can sometimes recover some of the fraudulently acquired funds from the assets of the perpetrators, in most cases, those assets fall woefully short of the victims’ losses. This leads to fraudulent transfer lawsuits (claw-back actions) against those who are suspected to have profited from the wrongdoing.

A transfer is fraudulent if it was made with the actual intent to defraud, but actual fraud …

“Underdog” Arbitration: A Plan For Transparency, Ramona L. Lampley

Faculty Articles

The use of mandatory, pre-dispute arbitration clauses in consumer, employment, health-care, and even nursing home agreements is ever-increasing, even though the general public has distrust and a lack of understanding of the nature of arbitration. The Supreme Court in AT&T Mobility LLC v. Concepcion, and then in American Express Co. v. Italian Colors Restaurant, has signaled firmly that mandatory pre-dispute arbitration is here to stay. This is true even for individual low-value claims in which one party, say the consumer or employee, has little or no bargaining power. I call these claims “underdog claims.” There have been numerous proposals to …

Contracting Away Your Right To Sue: What You Need To Know About Arbitration, Ramona L. Lampley

Faculty Articles

Arbitration agreements that typically accompany credit card agreements and other services can work well—or work disastrously. What many consumers do not realize is that in numerous everyday interactions with banks, employers and retailers, they are waiving their right to sue in court if a dispute does arise. Given the lack of consumer familiarity with arbitration, there is an inherent fear and distrust of the system often referred to either as alternative dispute resolution or private dispute resolution. Some of that public fear and distrust is well-founded. We know that private dispute resolution poses the opportunity for businesses to potentially take …

Piercing The Fiduciary Veil, Colin P. Marks

Faculty Articles

Limited partnerships (LPs) and limited liability companies (LLCs) permit formation with a unique management structure in that these entities may be managed by another limited liability entity, such as a corporation. Thus, the true managers are those individuals who manage the manager. It is well settled that the managing entity, such as a corporate general partner, owes default fiduciary duties, but what of these second-tier managers? Technically, it is the managing entity that owes the duties, not the managing entity’s owners, officers, and directors, yet courts have struggled with strict adherence to this separation when it would seem inequitable to …

All Your Air Right Are Belong To Us, Chad J. Pomeroy

Faculty Articles

Privacy and property rights are tricky subjects for a variety of reasons. One reason is that they have a unique relationship with each other, and this Article focuses on one of those areas of intersection—that of air rights and invasion of privacy. This is a timely topic due to the advent of drones, and this Article will argue that drone surveillance constitutes common law trespass and that any statute or regulation that permits such activity is in derogation of common law and so should be subject to particularly careful thought and consideration.

This is not as straightforward a thesis as …

If The Pope Is Infallible, Why Does He Need Lawyers?, Bill Piatt

Faculty Articles

One of the most widely misunderstood teachings of the Catholic Church involves the doctrine of papal infallibility. As a theological matter, papal infallibility is quite narrow. However, the widespread misconception that all Catholics must believe their Pope cannot make mistakes helped create resentment against Catholics for centuries, which has taken the form of physical attacks, political exclusion, and virulent anti-Catholic propaganda.

While the Catholic Church is no longer under direct physical attack, contemporaneous efforts seek to hold the Pope and the Church civilly and criminally liable in various contexts. In some instances, the Pope, acting as the head of the …

The Texas Rules Of Evidence: Something Old, Something New, And Something Changed, David A. Schlueter

Faculty Articles

On November 19, 2014, the Texas Supreme Court issued an Order amending all of the Texas Rules of Evidence, effective April 1, 2015. In its Order, the Court explained that the amendments were part of an effort to “restyle” the Rules, to make them as consistent as possible with the Federal Rules of Evidence, and to make them easier to understand.

The 2015 amendments to the Texas Rules of Evidence are a commendable step toward making the Rules more user-friendly. It is clear to even the casual reader that the reformatting of the Rules, through the use of consistent and …

American Military Justice: Responding To The Siren Songs For Reform, David A. Schlueter

Faculty Articles

Today, the American military justice system is being subjected to sweet and enticing calls for reform. At first hearing, the well-intentioned proposed reforms appeal to a sense of justice. On closer examination, however, those proposed reforms threaten the essence and functionality of an effective and efficient system of criminal justice that is applied in world-wide settings, in both peacetime and in war.

In the last several decades, an increasing number of commentators have recommended reforms to virtually every component of the military system. The most recent round of proposals arose from frustration and anger that many feel towards the military’s …

The Ancient Magna Carta And The Modern Rule Of Law: 1215 To 2015, Vincent R. Johnson

Faculty Articles

This article argues the text of the Magna Carta, now 800 years old, and reflects many of the values that are at the center of the modern concept of the Rule of Law. A careful review of its provisions reveals the Magna Carta demonstrates a strong commitment to the resolution of disputes based on rules and procedures that are consistent, accessible, transparent, and fair; and to the development of a legal system characterized by official accountability and respect for human dignity.

Game Of Bombs: President Barack Obama’S Nuclear Nonproliferation Regime, Jeffrey F. Addicott

Faculty Articles

One of President Barack Obama’s favorite solutions to reducing armed conflict in the world centers around his desire to rid the world of nuclear weapons. While this simplistic formula has certainly been voiced by other occupants of the oval office, the world is, and always has been, an extremely dangerous place, and the machinations of competing spheres of power will always exist in human history. Coupled with an aggressive Russia and China, the dangers associated with the new era of radical Islamic extremism rubricate the need to view the naiveté of President Obama’s vision of a planet without nuclear weapons …

In The Aftermath Of Shelby County: An Analysis On Why Texas Should Be Required To Pre-Clear All Voting Changes., Elizabeth Resendez

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

The history of the Voting Rights Act began with the passage of the Fifteenth Amendment. African-Americans have faced numerous roadblocks in exercising their right to vote. A few of these roadblocks include property tests, poll taxes, and gerrymandering of voting districts. The federal government attempted to combat these procedures by passing legislation. Initially, these laws tried to weaponize case-by-case litigation, but these laws were ineffective due to the far reach of voter discrimination and the sluggish pace of the litigation process. To better combat the issue, Congress attempted to use the Civil Rights Act of 1957 to deal with systemic …

Crisis At The Border: A Need To Reexamine The Doctrine Of Sovereign Immunity., Guinevere E. Moore, Robert T. Moore

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

Altercations between Border Patrol agents and nationals along the United States-Mexico border continue to reveal a trend of disproportionate use of force. This often results in death and a lack of justice in American courts. To hold the American government accountable for the actions of their agents, the United States should adopt a policy of waiving its sovereign immunity in cases where there have been violations of fundamental human rights.

The foreign sovereign immunity doctrine states a foreign sovereign cannot be brought into a United States court without first waiving its sovereign immunity from suit. With this, the United States …