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A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell
A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell
St. Mary's Law Journal
Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …
Venturing Into A Minefield: Potential Effects Of The Hobby Lobby Decision Of The Lgbt Community., Aglae Eufracio
Venturing Into A Minefield: Potential Effects Of The Hobby Lobby Decision Of The Lgbt Community., Aglae Eufracio
The Scholar: St. Mary's Law Review on Race and Social Justice
While freedom of religion is a right guaranteed to the American people, what that freedom entails, is often misunderstood. Religious freedom affords every American the right to practice any faith without fear of being persecuted or ostracized by the government. This fundamental right is frequently used to oppress certain groups of Americans because their lifestyle is not in accordance with traditional Christian values. This was highlighted in the recent case of Burwell v. Hobby Lobby. The controversy stemmed from the corporation’s use of religion as a method to deny women access to full healthcare coverage, citing religious opposition to abortion …
A Decade's Legacy: Dashed Hopes For Gender Equality And The Status Of Afghan Women In Light Of The Ensuing Drawdown., Meredith B. English
A Decade's Legacy: Dashed Hopes For Gender Equality And The Status Of Afghan Women In Light Of The Ensuing Drawdown., Meredith B. English
The Scholar: St. Mary's Law Review on Race and Social Justice
This Comment addresses the legal structures which need to be supported in order to ensure substantial gender equality after allied forces withdraw from Afghanistan. After 2013, justice for abused women in Afghanistan stalled. Research suggests women’s rights and peace in Afghanistan are directly related. The presence of the Taliban and their restrictive rules has many Afghan women fearing for their lives and for the loss of decades of progress in the women’s rights movement. Leaders in Afghanistan must acquire a more liberal interpretation of Sharia law, while staying within the boundaries of the religious and ethnic traditions of the culture. …
When Silence Requires Speech: Reviving The Right To Remain Silent In The Wake Of Salinas V. Texas., Brendan Villaneuva-Le
When Silence Requires Speech: Reviving The Right To Remain Silent In The Wake Of Salinas V. Texas., Brendan Villaneuva-Le
The Scholar: St. Mary's Law Review on Race and Social Justice
The history of an individual’s Constitutional right not to self-incriminate is complicated and counterintuitive. To eliminate this confusion, current Fifth Amendment jurisprudence should be altered. In Salinas v. Texas, the Supreme Court established silence alone is not enough to invoke an individual’s right to remain silent. Certain individuals face a significant disadvantage by this interpretation due to potential inabilities to understand their rights and how to invoke them. Providing clear and concise warnings better serves the Fifth Amendment’s original purpose, enabling people to know how to invoke their rights. The Supreme Court historically has adopted a liberal interpretation of the …
The New Voter Suppression: Why The Voting Rights Act Still Matters., Michael Ellement
The New Voter Suppression: Why The Voting Rights Act Still Matters., Michael Ellement
The Scholar: St. Mary's Law Review on Race and Social Justice
The Voting Rights Act of 1965 drastically transformed the ability of African Americans to exercise their right to vote in the South. The most influential policy under the Act was Section Five. This section instituted a new system of review for voting procedure changes in states with a history of racial discrimination. States subject to this section of the Voting Rights Act must get preclearance by submitting any changes to their voting laws to the United States Department of Justice or to the Federal District Court in the District of Columbia. Any law not cleared will not go into effect. …
She Acts Guilty: Sexually Charged Consciousness Of Guilt Evidence Should Be Excluded Because It Is Biased Against Women., Colin Caffrey
She Acts Guilty: Sexually Charged Consciousness Of Guilt Evidence Should Be Excluded Because It Is Biased Against Women., Colin Caffrey
The Scholar: St. Mary's Law Review on Race and Social Justice
A lawyer may submit sexually charged evidence under a consciousness of guilt theory. Utilizing this type of evidence convicts women based on their character, not for their alleged crimes, in criminal cases across America. Consciousness of guilt evidence holds bias because it exploits common gender stereotypes in order to obtain criminal convictions. Sexually charged evidence does not directly show a defendant’s guilt, but simply allows the jury to infer guilt based on a defendant’s conduct. Violating gender norms or reacting to the occurrence of a tragedy differently than one might normally expect is not an admission of guilt. Sexually charged …
The Underrespresentation Of Hispanic Women In The Science, Technology, Engineering, And Mathematics Fields: What Can Be Done To Curie The Problem., Elky Almaraz
The Scholar: St. Mary's Law Review on Race and Social Justice
Hispanic women comprise approximately eight percent of the United States’ population and represent the largest group of minority women. However, Hispanic women only make up approximately two percent of the science and engineering workforce. In contrast, Caucasian women form approximately one-third of the United States’ population and eighteen percent of the science, technology, engineering, or mathematics (STEM) workforce. Hispanic women begin a post-secondary education in STEM fields with a proportional interest to other gender or racial groups. However, they are far less likely to continue the coursework and ultimately earn a degree than their non-minority classmates. Schools and education officials …
The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen
The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen
St. Mary's Law Journal
Texas has undergone a succession of historic droughts, each one creating unique problems and controversies. The state is also one of the largest national producers of oil and gas with the Eagle Ford Shale fields contributing to the production boom. The technique used to extract the oil is called hydraulic fracturing, which requires large volumes of water to be injected at high pressures to “frac” and release gas from an underground formation. The amount of water required places even greater strain on the regional water supply. This Comment highlights legal issues raised by the high volumes of groundwater used for …
On Behalf Of An Ungrateful Nation: Military Naturalization, Aggravated Felonies And The Good Moral Character Requirement., B. Ryan Byrd
On Behalf Of An Ungrateful Nation: Military Naturalization, Aggravated Felonies And The Good Moral Character Requirement., B. Ryan Byrd
The Scholar: St. Mary's Law Review on Race and Social Justice
In the United States military, it is an aggravated felony for naturalization purposes to fraudulently enlist in the military and alter identity documents. This denotation under these circumstances does not require violence, the use of a weapon, or a formal conviction in a court of law. Acts with this designation are statutory permanent bars to citizenship because their presence in an applicant’s record prevents a finding of good moral character, one of the requirements for naturalization. Alternatively, the presence of prior crimes in a legal permanent resident’s background are not serious enough to prevent enlistment in the military. Over 31,000 …
Hardline Ideology Stymies Real Results: Texas Lawmakers' Battle Over Family Planning Leaves Texas Women Unprotected., Mariel Puryear
Hardline Ideology Stymies Real Results: Texas Lawmakers' Battle Over Family Planning Leaves Texas Women Unprotected., Mariel Puryear
The Scholar: St. Mary's Law Review on Race and Social Justice
Family planning has opened economic and social doors for women. Contraception, specifically, allows women to choose when they have children, how far apart their children are born, or if they have children at all. This freedom empowers women to pursue higher education and careers which might not have been attainable otherwise. The increase in education effectively levels the playing field between genders, bringing more women into traditionally male-dominated professions. Family planning and contraceptive measures also dramatically impact low-income families. The role of family planning clinics is extremely important in a state like Texas, where many do not have insurance, and …
Gun Control Is Not Enough: The Need To Address Mental Illness To Prevent Incidences Of Mass Public Violence., Morgan Stanley
Gun Control Is Not Enough: The Need To Address Mental Illness To Prevent Incidences Of Mass Public Violence., Morgan Stanley
The Scholar: St. Mary's Law Review on Race and Social Justice
Throughout the year 2012, senseless violence and tragedy plagued the United States. Numerous mass shootings occurred, leaving innocent victims dead and leaving their survivors to grieve. No single law can prevent a mass shooting from occurring, but access to firearms is one of many potential reasons such tragedies happen. There are many reasons why a gunman is motivated to commit such heinous acts. Failure to take notice of warning signs, bullying, drug use, and serious mental illness are a few examples. One in seventeen Americans live with a serious diagnosable mental illness. Most mentally ill persons are the victims of …
When It Rains, It Pours: The Violence Against Women Act's Failure To Provide Shelter From The Storm Of Domestic Violence., Alyse Faye Haugen
When It Rains, It Pours: The Violence Against Women Act's Failure To Provide Shelter From The Storm Of Domestic Violence., Alyse Faye Haugen
The Scholar: St. Mary's Law Review on Race and Social Justice
The threat of abuse affects women of all socioeconomic levels, educations, and zip codes. For centuries, women were second-class citizens in the eyes of society and the government. Women could not access resources to prevent violence and subsequently were denied essential victim services. The passage of the Violence Against Women Act (VAWA) in 1994 expressed the government’s commitment to ending domestic violence, sexual assault, stalking, and other gender-based violent crimes. Although VAWA exists, violence against women continues to be pervasive, devastating women’s lives daily. Victims of domestic violence face several issues. These include protecting children from abuse, finding and securing …
Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki
Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki
St. Mary's Law Journal
The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …
Dividing Stereotyping And Religion: The Legal Implications Of The Ambiguous References To Voodoo In U.S. Court Proceedings., Danielle N. Boaz
Dividing Stereotyping And Religion: The Legal Implications Of The Ambiguous References To Voodoo In U.S. Court Proceedings., Danielle N. Boaz
The Scholar: St. Mary's Law Review on Race and Social Justice
In human rights law, freedom of religion generally possesses three main components: the right to freedom of thought and conscience, freedom to manifest religion or beliefs, and freedom to profess, disseminate, or share religion or beliefs. The latter two are typically subject to restrictions such as public safety, health, morals, and the rights and freedoms of others. They are also the two most often litigated components. For centuries, colonizers deprived practitioners of their freedom of religion in the Americas – specifically African-based traditions, such as Voodoo. Stereotypes about Voodoo, which stem from early colonizer observance and belief that Haitians were …
Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray
Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray
St. Mary's Law Journal
The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …
Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones
Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones
St. Mary's Law Journal
The language of the Texas Civil Practice and Remedies Code § 41.0105 is by no means clear. Most Texas practitioners refer to it as the “paid-or-incurred statute.” This is due to the statue stating that recovery of medical or health care expenses are limited to the amount actually paid or incurred by or on behalf of the claimant. Yet, Texas trial lawyers and judges are perplexed by what the statute truly means. Causing further concern, most Texas practitioners do not appear to understand how the statute should be applied. At the center of the debate lies the collateral-source rule and …
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
St. Mary's Law Journal
The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …
Deliberately Defrauding Investors: The Scope Of Liability Comment., Andrew R. Simank
Deliberately Defrauding Investors: The Scope Of Liability Comment., Andrew R. Simank
St. Mary's Law Journal
Since the Enron debacle, shareholders have increasingly filed suit in state and federal courts to recoup financial losses resulting from fraudulent representations made by failing corporations. These shareholders have advanced common law misrepresentation claims against publicly traded companies for alleged fraudulent U.S. Securities and Exchange Commission (SEC) filings. Originally, the scope of liability for common law fraud was very narrow. This scope was later broadened in an attempt to provide protection to individuals commonly victimized by fraudulent behavior. Texas courts have gone to great lengths to ensure the “expectation of influencing conduct” requirement for common law fraud requires more than …
Technical Problem: How City Of Dallas V. Dallas Morning News, Lp Exposed A Major Loophole In The Texas Public Information Act Comment., Alexander J. Yoakum
Technical Problem: How City Of Dallas V. Dallas Morning News, Lp Exposed A Major Loophole In The Texas Public Information Act Comment., Alexander J. Yoakum
St. Mary's Law Journal
The Texas Public Information Act (TPIA) grants everyone a statutory right to access records of a governmental body unless disclosure would violate the law. Generally, TPIA is construed broadly to favor disclosure, but the rise of modern technology like email and text messaging reveals how dated TPIA truly is. According to the recent City of Dallas v. Dallas Morning News, LP, a governmental body is not required to release any business-related electronic communications sent via personal devices. This means governmental employees can conduct official business via personal email or cell phone without being subject to disclosure provisions, unless the requester …
Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly
Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly
St. Mary's Law Journal
In 2000, the American Bar Association House of Delegates voted to uphold the ban on multidisciplinary practices (MDPs) set out in Rule 5.4 of the Model Rules of Professional Conduct (Model Rules). In 2009, the ABA announced the creation of the Ethics 20/20 Commission to review the Model Rules in the context of globalization. The Commission announced it was looking into alternative business structures, including MDPs. In an MDP a client can seek the advice of several professionals with experience in different disciplines working in a single business. Under Rule 5.4, a lawyer is prohibited from sharing legal fees with …
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
St. Mary's Law Journal
When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit …
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
St. Mary's Law Journal
Patents are grants issued by the United States Patent and Trademark Office (USPTO) which confer upon the holder, the patentee, patent rights to such intellectual property as inventions, technologies, and processes. Patent rights include the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” Once the USTPO has granted a patent, the inventor may market the product. Patentees who do not have the funds or time to market the product may profit by conveying the legal rights conferred by the patent to other …
A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer
A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer
St. Mary's Law Journal
Since close to half the country’s marriages end in divorce, marriage dissolution is quite a lucrative business for attorneys. Also, fewer people are entering marriage in the first place. Fewer marriages combined with more children born out of wedlock create multitudinous legal problems and family disputes centering around those children. In addition to initial divorce filings and suits affecting the parent-child relationship, dissolution of marriage cases often creates additional litigation down the road. As a solution to the problems caused by the expense and toil of this litigation, alternative dispute resolution (ADR) offers several options for family disputants. Two popular …
Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv
Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv
St. Mary's Law Journal
The practicing attorney must have a complete understanding of legal malpractice liability. Managing this risk can be a precarious responsibility when the law is not clearly defined. This is compounded by the steady erosion of attorney-client privity barriers making it easier for third party non-clients to sue lawyers for legal malpractice. This is the current state of matters in Texas since the Texas Supreme Court decided Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. on May 5, 2006. The Belt court determined personal representatives of an estate may bring a malpractice claim against the decedent’s attorneys. The Belt court was …
Defining And Determining Retardation In Texas Capital Murder Defendants: A Proposal To The Texas Legislature., Graham Baker
Defining And Determining Retardation In Texas Capital Murder Defendants: A Proposal To The Texas Legislature., Graham Baker
The Scholar: St. Mary's Law Review on Race and Social Justice
Although the Supreme Court of the United States ruled it is cruel and unusual to execute someone with a mental handicap, Texas statutes still do not adequately protect these individuals. Previously, the Court in Penry v. Lynaugh upheld states executing individuals with mental deficiencies. However, individual states began to outlaw such a practice. When the Court heard Atkins v. Virginia, they determined the states created a national consensus against executing persons who possess certain developmental disabilities, thus rendering it cruel and unusual. Atkins did not, however, define mental retardation and left it up to individual states to determine that criteria. …
Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo
Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo
St. Mary's Law Journal
There is a nationwide debate on whether punitive damages should be insurable. Insuring punitive damages causes courts concern regarding whether a wrongdoer escapes punishment by having the insurer pay for damages attributable to the wrongdoer’s egregious conduct. The United States Court of Appeals for the Fifth Circuit noted Texas’ public policy does not justify interference with private insurance contracts. The Court determined Texas allows liability insurance contracts to cover punitive damages and declared the inquiry ended. But, in the years since this determination, many Texas appellate courts have contracted the Fifth Circuit’s holding. The shifting discussion among Texas appellate courts …
What We Owe The World Are Thoughtful War-Crimes Trials That Do Justice Without Unduly Jeopardizing Innocent Lives By Compromising Vital Intelligence Comment., Sherry M. Barnash
What We Owe The World Are Thoughtful War-Crimes Trials That Do Justice Without Unduly Jeopardizing Innocent Lives By Compromising Vital Intelligence Comment., Sherry M. Barnash
St. Mary's Law Journal
In Hamdan v. Rumsfeld, the United States Supreme Court held the military commission convened to try accused terrorist Salim Ahmen Hamdan was unlawful. The Court concluded the Government could not lawfully proceed using established commission rules because the commission differed from courts-martial and did not follow certain aspects of the Geneva Convention. One procedure the Court found troubling was a provision in the Military Commission Order No. 1 which allowed the exclusion of the defendant and his civilian counsel from certain proceedings. Yet, denial of access was nothing new, as three decades prior Congress enacted the Classified Information Procedures Act …
The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii
The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii
St. Mary's Law Journal
Groundwater is a type of freshwater stored in the earth’s crust which does not flow through underground channels. In Texas, groundwater is becoming highly sought-after, and development of proper management and conservation models is crucial to preserve the resource for future generations. In Texas, ownership of groundwater is governed by the common law doctrine of absolute ownership, commonly mislabeled as the rule of capture. The absolute ownership doctrine still governs groundwater ownership, but its application has been judicially altered to limit the rights of landowners who wish to pump water from beneath their lands. Texas lawmakers also contributed to the …
Dealing With A Depressed Workforce: Are American Employers Doing Enough To Support The Mental Health Challenges Affecting Today's Employees., Charity Felts
The Scholar: St. Mary's Law Review on Race and Social Justice
This comment focuses on what American employers should be doing to recognize and deal with an employee population afflicted by mental illness. Americans suffer from a variety of mental health challenges. The symptoms of these mental illnesses vary from mild to severe. Often, if left untreated, these challenges can turn into full blown mental disorders. Employers typically ignore these issues due to high employee turnover rate and lack of employee loyalty. The cost attributable to mental illness every year is twenty-three billion dollars. However, when calculating the indirect costs like loss of productivity and absenteeism, the actual cost reaches $249 …
Down And Out In San Antonio: The Constitutionality Of San Antonio's Anti-Homeless Ordinances., Justin Cook
Down And Out In San Antonio: The Constitutionality Of San Antonio's Anti-Homeless Ordinances., Justin Cook
The Scholar: St. Mary's Law Review on Race and Social Justice
This comment addresses the constitutionality of two San Antonio anti-homeless ordinances which prohibit camping in public and aggressive panhandling. The population of San Antonio, Texas grows at a rapid rate. Mayor Ed Garza established a task force to address the homelessness problem in San Antonio. This task force developed a ten-year plan to end homelessness in the city. The plan proposed by the year 2014 all homeless individuals would have alternatives and access to safe, decent, and affordable housing as well as resources and support to sustain housing. However, not long after approving the proposal, San Antonio’s City Council presented …