Law Commons^™

Judicial Ethics In The Confluence Of National Security And Political Ideology: William Howard Taft And The “Teapot Dome” Oil Scandal As A Case Study For The Post-Trump Era, Joshua E. Kastenberg

St. Mary's Law Journal

Political scandal arose from almost the outset of President Warren G. Harding’s administration. The scandal included corruption in the Veterans’ Administration, in the Alien Property Custodian, but most importantly, in the executive branch’s oversight of the Navy’s ability to supply fuel to itself. The scandal reached the Court in three appeals arising from the transfer of naval petroleum management from the Department of the Navy to the Department of the Interior. Two of the appeals arose from President Coolidge’s decision to rescind oil leases to two companies that had funneled monies to the Secretary of the Interior. A third appeal …

The Aoc In The Age Of Covid—Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

St. Mary's Law Journal

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

When Police Volunteer To Kill, Alexandra L. Klein

Faculty Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible-and probable method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the …

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

St. Mary's Law Journal

Abstract forthcoming.

“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom

St. Mary's Law Journal

Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.

The article begins by considering the concept of judicial legitimacy as developed and studied by political scientists. Next it …

The Militia: A Definition And Litmus Test, Marcus Armstrong

St. Mary's Law Journal

The United States Supreme Court, in its decision in Perpich v. Department of Defense, ruled that members of the National Guard are “troops” as that word is used in the Constitution. In doing so, the Court negated a long-standing, but obsolete, definition of the militia. However, this move away from an obsolete definition of the militia posed considerable difficulties that the Court was unable to rectify in its Perpich decision. In this Article, the author hopes to help rectify these difficulties by proposing four necessary characteristics that define the militia: first, the militia is a military force; second, the …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Terrible Touhy: Navigating Judicial Review Of An Agency's Response To Third-Party Subpoenas, Zoe Niesel

Faculty Articles

The question of judicial review of a federal agency's response to a third-party subpoena is highly litigated and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court's holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard.

This Article establishes that the circuit courts' approaches to judicial review of an agency's …

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

Reshaping American Jurisprudence In The Trump Era - The Rise Of Originalist Judges, Jeffrey F. Addicott

Faculty Articles

One of the factors that is often cited as a key reason why President Donald J. Trump was elected as the forty-fifth president, was his pledge to the American people to "make America great again" by appointing "conservative judges" to the bench, particularly when it came to filling any vacancies that might open on the United States Supreme Court. Since the never ending fight for securing an ideological majority on the Supreme Court is always viewed with great concern by both political parties, many wondered whether then candidate Trump was simply telling potential voters what they wanted to hear, or …

Beyond The Borders Of The Law: Critical Legal Histories Of The North American West (Book Review), Michael S. Ariens

Faculty Articles

No abstract provided.

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey

Faculty Articles

For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.

This article surveys this constitutional odyssey, …

Prosecuting The War On Terror In The Trump Administration: The Trump Doctrine: Is There Really A New Sheriff In Town, Jeffrey F. Addicott

Faculty Articles

After one full year in office, it is time to examine the actions taken by the Trump Administration in light of its legal and policy structures for dealing with the War on Terror and the companion problem of radical Islamic terrorism-both the domestic and international threat. In this context, two general concepts bear examination. First, is there a significant change in the Trump Administration from the policies of the Bush and Obama Administrations vis a vis prosecuting the War on Terror and dealing with domestic jihadists? Second, has the Trump strategic vision and attendant actions contributed in any significant way …

Political Ripples Ahead For Supreme Court Confirmation, Michael S. Ariens

Faculty Articles

No abstract provided.

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

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

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

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

Abstract forthcoming.

The Other Rights Revolution: Conservative Lawyers And The Remaking Of American Government (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

What's Coming For Class Actions,, Zoe Niesel

Faculty Articles

A trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification.

Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs' attorneys to show issues and damages common to all plaintiffs in the proposed …

Unconscionable Judicial Disdain For Unsophisticated Consumers And Employees' Contractual Rights? Legal And Empirical Analyses Of Courts' Mandatory Arbitration Rulings And The Systematic Erosion Of Procedural And Substantive Unconscionability Defenses Under The Federal Arbitration Act 1800-2015, Willy E. Rice

Faculty Articles

Although the Consumer Financial Protection Bureau (“CFPB”) has taken steps to educate consumers about the perils of hidden and complicated arbitration provisions in contracts, these activities are not enough. Exceedingly large populations of unsophisticated employees need assistance because they are increasingly forced to arbitrate state and federal claims. Consequently, the Court's extremely harsh “federal policies” have gradually, systematically, and significantly eroded consumers and employees' ability to defend themselves in compulsive-arbitration trials.

While arbitration may be within the reasonable expectations of consumers, a process that builds prohibitively expensive fees into the arbitration process is not. It is substantively unconscionable to require …

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

St. Mary's Law Journal

Abstract forthcoming.

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 …

The History Of The Rise Of The Alien Tort Statute And The Future Implications Of Kiobel V. Royal Dutch Shell., Sung Je Lee

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

The United States Supreme Court did not clearly define what facts invoke the Alien Tort Statute (ATS). The Court also failed to provide guidance as to what claims touch and concern the territory of the United States. Enacted by the Continental Congress in the late 18th century, ATS states that federal district courts shall have original jurisdiction of any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. Because ATS has remained dormant for nearly 200 years, various federal courts have experienced immense difficulty interpreting its …

The Agony Of Modern Legal Ethics, 1970-1985., Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

When the American Bar Association (ABA) adopted its Code of Professional Responsibility at its annual meeting in August 1969, the American legal profession was a publicly respected and economically vibrant body. Lawyers, though always more feared than loved, became increasingly important in post-World War II America. The demand for their services exploded for a quarter-century, and lawyers assumed an increased role in the economic and political life of the United States. During the 1950s and early 1960s, the Cold War led American lawyers and other public figures to re-emphasize the rule of law as defining the difference between the United …

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 …

Certainty In A World Of Uncertainty: Proposing Statutory Guidance In Sentencing Juveniles To Life Without Parole., Sonia Mardarewich

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

In Miller v. Alabama, the United States Supreme Court held that mandatory life sentences without parole imposed upon juveniles was unconstitutional. The Court reasoned that the sentence was cruel and unusual punishment in violation of the Eighth Amendment. The Court, however, did not hold it was unconstitutional to sentence a juvenile to life without parole if there was “transferred intent” or “reckless disregard.” Nonetheless, the Court effectively abolished state discretion and required sentencing courts to consider an offender’s youth and attendant characteristics as mitigating circumstances. The Court, however, did not specify what sentencing guidelines should dictate. Thus, states are now …

The Promise Of Things To Come: Anticipatory Warrants In Texas, Gerald S. Reamey

Faculty Articles

While the U.S. Supreme Court has settled the question of the constitutionality of anticipatory search warrants, Texas has no statutory provision regulating the issuance of such warrants. Similarly, state appellate courts have contributed almost nothing to the question of whether such warrants are acceptable under Texas procedural law or, if they are, under what circumstances. As the use of such warrants grows in the state, these issues require attention. This article begins that discussion, reviewing existing law and proposing interpretations of current statutes as well as proposing others.

Lafler And Frye: A New Constitutional Standard For Negotiation, Rishi Batra

Faculty Articles

The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation …

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. …

What Is The Matter With Antigone?, Emily A. Hartigan

Faculty Articles

No abstract provided.