Law Commons^™

The Red Pill: Critical Race Theory, Ostrich Law, And The 14th Amendment Right To Free And Equal Thought And Dignity, Kindaka J. Sanders

St. Mary's Law Journal

No abstract provided.

Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo

St. Mary's Law Journal

In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act, which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law, and Arizona debated a bill purporting to regulate …

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso

St. Mary's Law Journal

Abstract forthcoming.

The Thirteenth Amendment And One Hundred And Fifty Years Of Struggle To Criminalize Slavery: A First Amendment Challenge To The Forced Labor Act (18 U.S.C. § 1589), Niles Stefan Illich

St. Mary's Law Journal

Abstract forthcoming.

A “License To Kale”—Free Speech Challenges To Occupational Licensing Of Nutrition And Dietetics, Taylor J. Newman, Angela E. Surrett

St. Mary's Law Journal

State licensing of medical professions has occurred for over a century. Recently, these licensure statutes have been subject to First Amendment challenges, alleging occupational licensure impermissibly restricts freedom of speech. This Comment addresses these free speech challenges, arguing occupational licensure statutes, at least for medical professions, only incidentally impacts free speech—if at all—by permissibly regulating medical professional conduct necessarily requiring speech. Within, the authors ultimately describe, demonstrate, and recommend a legal framework, the other factor/personal nexus approach. This approach helps determine the point at which speech becomes regulable professional conduct subject to licensing, utilizing the nutrition and dietetics profession, and …

Campus Free Speech In The Mirror Of Rising Anti-Semitism, Harry G. Hutchison

St. Mary's Law Journal

Abstract forthcoming.

The Bumble Bill: A Critical Analysis On Texas’S New Law Taking Indecent Exposure Regulations Online, Ashley B. Huron

St. Mary's Law Journal

Abstract forthcoming.

Disappearing Act: Are Free Speech Rights Decreasing?, Michael Conklin

St. Mary's Law Journal

Abstract forthcoming.

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

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

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita

St. Mary's Journal on Legal Malpractice & Ethics

The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …

State Bar Efforts To Deny Accreditation To Faith-Based Cle Ethics Programs Sponsored By Religiously Affiliated Law Schools, Bill Piatt

Faculty Articles

Religiously affiliated law schools focus on the integration of faith in the formation of future attorneys and leaders. Yet our students are only our students for three years. We can extend our influence and continue to provide a faith-based perspective to them and to other attorneys during the thirty, forty, or more years of their careers by offering continuing legal education (CLE) courses, which bring attorneys and judges together to provide a model for incorporating faith and morality into our professional roles. However, CLE programs must receive accreditation by state authorities if participants are to receive credit for them. Recently, …

The Impact Of Technological Developments On The Rules Of Attorney Ethics Regarding Attorney–Client Privilege, Confidentiality, And Social Media, Pamela A. Bresnahan, Lucian T. Pera

St. Mary's Journal on Legal Malpractice & Ethics

This article focuses on the development of the law of ethics and technology. Emphasis is placed on how technological developments have affected the rules and means by which lawyers practice law and certain ethical pitfalls that have developed hand-in-hand with technological advancements. Topics examined include: (1) the ways by which electronic communication has increased the potential for the attorney–client privilege to be waived and the resulting impact on the present-day practice of law; (2) the effect of social media on lawyers’ ethical obligations, including counseling clients regarding the client’s use of social media and the lawyer’s own use of social …

The Right To Be Forgotten: Comparing U.S. And European Approaches, Samuel W. Royston

St. Mary's Law Journal

This Article compares the European and United States stances regarding the right to be forgotten. Within that context, this Article explores the implications of technological advances on constitutional rights, specifically the intersection of the right to free speech and the right to privacy, commonly referred to as the "right to be forgotten" paradox. In the United States, the trend is to favor free speech, while Europe places an emphasis on human rights. Each approach is analyzed based on supporting case law. The consequences of each approach on society, both long- and short-term, are also discussed. This Article argues that a …

The Amplified Need For Supreme Court Guidance On Student Speech Rights In The Digital Age, William Calve

St. Mary's Law Journal

Abstract forthcoming.

Filming The Police: An Interference Or A Public Service, Aracely Rodman

St. Mary's Law Journal

Abstract forthcoming.

Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick

St. Mary's Law Journal

Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …

The Qualified Privilege Of Texas Lawyers To Defend Their Reputations., Clement J. Hayes

St. Mary's Journal on Legal Malpractice & Ethics

The technology-based society of the twenty-first century offers vast Internet resources that afford individuals easy access to information and means of communication. As a result, people spend substantial time online. Some Internet sites, such as Facebook, Twitter, Yelp, Angie's List and Google, provide consumers an online forum for sharing experiences and opinions. This development, while in many respects beneficial, is not without its drawbacks.

On The Abuse And Limits Of Lawyer Discipline, Vincent R. Johnson

Faculty Articles

Despite being routinely underfunded, lawyer disciplinary processes must operate in ways that merit the confidence of both society at large and the American legal profession. This means that those who participate in lawyer grievance adjudication must be vigilant against systemic abuse (whether deliberate or unintentional) and mindful of factors that limit institutional competence. This Essay argues that, in many instances, disciplinary authorities should abstain from deciding grievances that would require them to rule on unresolved scientific questions, particularly if controversial matters are involved. The Essay further urges that grievance rulings must be consistent with American constitutional principles which favor robust …

Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz

St. Mary's Law Journal

The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …

Life In The Early Days Of Lawyer Advertising: Personal Recollections Of A Bates Baby, Gerald S. Reamey

Faculty Articles

The Supreme Court decision in Bates v. State Bar of Arizona ruled that lawyer advertising is commercial speech subject to First Amendment protection. However, a Texas disciplinary statute provided that “a lawyer shall not publicize himself, his partner, or associate…through newspaper or magazine advertisements, radio or television announcements…or other means of commercial publicity.” Despite being clearly unconstitutional, the Texas statute remained law for five years. Finally, responding to Bates in September 1977, the Texas State Bar Board of Directors adopted an official statement which allowed for limited advertising in newspapers, and only to the extent which was provided for by …

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 …

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 …

Legal Obstacles To Bringing The Twenty-First Century In The Classroom: Stop Being Creative, You May Already Be In Trouble, Andre Hampton

Faculty Articles

There are unimaginable benefits available if legal educators can bring the law classroom into the twenty-first century through the use of popular media and celebrities in their teaching. With the introduction of “pop culture,” the professor can permanently alter the student's view of the course material. Bringing pop culture into the classroom will make the course material more relevant to our students’ lives outside the classroom. This will enhance both their willingness and their ability to master legal concepts.

There are two major obstacles to bringing pop culture into the classroom. The initial major obstacle is the Copyright Act of …

Iolta In The Balance: The Battle Of Legality And Morality Between Robin Hood And The Miser Recent Development., Katherine L. Smith

St. Mary's Law Journal

Interest on Lawyers Trust Account (IOLTA) programs recently survived a constitutional challenge. IOLTA programs require interest earned from trust accounts deposited with client money to fund legal services for the poor. Many states, including Texas, maintain a mandatory IOLTA program, requiring all lawyers who handle client funds to participate. Proponents of IOLTA argue it benefits civil justice. Opponents argue it is an unconstitutional taking in violation of the Fifth Amendment. The Fifth Circuit held IOLTA accounts to be an unconstitutional taking of client property. The Ninth Circuit, however, found IOLTA accounts constitutional, holding that IOLTA accounts are not a taking …

America And The World: Human Rights At Home And Abroad., Joe W. (Chip) Pitts Iii

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

Multiple provisions in the Bill of Rights appear gutted around the last year. While abroad, Mr. Pitts received an outside perspective on American news which provided him with a new outlook on current events. The United Nations Social Forum brought voices into the United Nations which are not typically heard, such as poor and vulnerable populations not represented elsewhere. Concurrently, the Johannesburg Summit addressed similar issues. However, as of late, the American government suppresses the voices of the American people. The Patriot Act includes provisions which deter dissent, freedom of speech, and assembly. This Act also purported to give the …

The Decision In United States V. Brown: The Fifth Circuit Interprets Justice Is Blind Literally., Robert M. Anselmo

St. Mary's Law Journal

In United States v. Brown, the Fifth Circuit affirmed the district courts use of anonymous jury orders. The use of anonymous juries, however, is either a necessary protection for jury members or an unfair procedural practice. The Fifth Circuit’s support for anonymous juries included concerns over threats, intimidation, and possible attempts to influence juror members in order to secure a favorable verdict. The promise of a jury of one's peers is a cornerstone of the United States judicial system. Implicit in this guarantee is the assurance of an impartial jury. Nonetheless, a jury that sits in fear may not fulfill …

Defining “Church” In American Law, Michael S. Ariens

Faculty Articles

Balancing the autonomy of religious organizations against regulatory laws remains both a difficult and hotly contested issue. It is helpful to survey labor, property, tax, and education laws to illustrate the tensions between religion and government in American law.

Labor law cases show the autonomy of religious organizations concerning governmental regulations through the National Labor Relations Act and Title VII. In regard to church property, the government has an interest in regulating how religious organizations buy and sell land, run day care centers and food kitchens, raise and borrow money, commit torts, and enter into contracts. Section 501(c)(3) of the …

Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman

St. Mary's Law Journal

This Essay addresses judicial interpretation and application of the religious protections of students in public schools. Part II addresses the evolution of the law governing prayer in public schools, including the creation of judicial tests utilized in determining whether a school district has impeded the rights of students in the area of religion. Part III examines the application of these tests to various activities, including a discussion of the disparity in judicial interpretation with respect to the permissibility of prayer at public school functions. This Essay concludes with a discussion analyzing the effect of the recent United States Supreme Court …

Much Ado About Spam: Unsolicited Advertising, The Internet, And You., Scot M. Graydon

St. Mary's Law Journal

Internet users need protection from unsolicited commercial emails (UCEs), and this protection should come from federal legislation. Despite seventeen states having passed some sort of legislation regulating UCEs, this is insufficient to protect Internet users from UCEs. State laws are not uniformed and UCEs frequently cross state lines. Internet advertisers prefer commercial emails because of the ability to market to millions of consumers at a low cost. Consumers, however, suffer delays to their Internet access because of the amount of data UCEs accumulate, and in some cases may have to pay additional fees if they exceed the data limits of …

From Little Acorns Great Oaks Grow: The Constitutionality Of Protecting Minors From Harmful Internet Material In Public Libraries Comment., Kimberly S. Keller

St. Mary's Law Journal

Congress should focus on the receiver's end of Internet transmissions to overcome the anonymity and transmogrification elements of the Internet to protect minors from harmful material. Throughout the years, librarians have struggled with monitoring minors’ access to the accumulating number of controversial texts in the library. The Internet’s unique infrastructure affords librarians virtually no opportunity for the pre-shelf review available with books and videos. Congress enacted the Communications Decency Act (CDA) in 1996 in an attempt to protect minors from the underbelly of the internet. The United States Supreme Court, in Reno v. ACLU, struck down the CDA ruling that …