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Articles 1021 - 1050 of 1969

Full-Text Articles in Environmental Law

Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum., Bernard D. Reams Jr. Jan 2007

Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum., Bernard D. Reams Jr.

St. Mary's Law Journal

Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results. Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or …

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Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo Jan 2007

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 …

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Texas's Attempt To Mitigate The Risks Of Contracts For Deed - Too Much For Sellers - Too Little For Buyers Recent Development., Shelayne Clemmer Jan 2007

Texas's Attempt To Mitigate The Risks Of Contracts For Deed - Too Much For Sellers - Too Little For Buyers Recent Development., Shelayne Clemmer

St. Mary's Law Journal

Abstract Forthcoming.

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Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews Jan 2007

Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews

St. Mary's Law Journal

The Texas Supreme Court’s decision in Kroger Co. v. Keng appears to resolve the question of whether an employer who does not subscribe to worker’s compensation can avail itself of the proportionate responsibility scheme in Chapter 33 of the Texas Civil Practice and Remedies Code. The question left unresolved is whether proportionate responsibility is available in nonsubscriber cases involving additional independently liable defendants. In Keng, the Court premised its holding on Texas Labor Code § 406.033, concluding nonsubscribing employers are prohibited from proving its employees were negligent. The Keng Court declined to decide whether proportionate responsibility was unavailable per se. …

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Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson Jan 2007

Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson

St. Mary's Law Journal

Over the years Texas appellate courts have been wrestling with two overwhelming charge issues—charge preservation of error and broad-form use. Since the charge is the controlling document the jury uses to decide the factual issues of the case, it is of extreme importance. Before a party can complain on appeal about charge errors, the error must be preserved at trial. The Texas Rules of Civil Procedure (TRCP) have a certain set of procedures for preservation of charge error. The Texas Supreme Court amended charge preservation of error practice in State Department of Highways & Public Transportation v. Payne. In the …

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The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii Jan 2007

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 …

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Spam (Supremacy Clause, Public Forums, And Mailings): The Fifth Circuit's Interpretation Of The Can-Span Act In White Buffalo V. University Of Texas Comment., Jason A. Smith Jan 2007

Spam (Supremacy Clause, Public Forums, And Mailings): The Fifth Circuit's Interpretation Of The Can-Span Act In White Buffalo V. University Of Texas Comment., Jason A. Smith

St. Mary's Law Journal

Unsolicited email advertisement, spam, has been a problem of the internet since its inception. In the face of this onslaught, users have fought back with a variety of methods, involving filtering software. Users have also resorted to the courts, suing spammers under the “trespass to chattels” theory. Not all courts have agreed with this theory, as there is often little evidence of the owner’s use of their servers being adversely affected by a digital trespass. While the states were the first to address overwhelming amount of spam, Congress address the issue with the first nationwide anti-spam legislation, the CAN-SPAM Act. …

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Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford Jan 2007

Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford

St. Mary's Law Journal

The law regarding covenants not to compete is a product of the tension between competing rights, including the right of companies to protect trade secrets, market share, and corporate goodwill. Companies use non-compete covenants to deter competition from former employees and discourage employees from job hopping. A covenant not to compete is generally defined as a contractual provision in which one party agrees to refrain from conducting business similar to that of the other party. Courts generally enforce covenants concerning activities after the termination of employment if such covenants are “reasonable in scope, time, and territory.” The promise cannot be …

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Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond Jan 2007

Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond

St. Mary's Law Journal

The last two decades have witnessed the creation of a perilous liability environment for lawyers and law firms. Most discussions of lawyer liability begin with “legal malpractice,” a term which typically describes professional negligence. In a malpractice case, the plaintiff must prove the lawyer owed them a duty, the duty was breached, and the breach was the proximate cause of actual damages. The lawyer’s duty flows from the attorney-client relationship. But, the attorney-client relationship is also a fiduciary one, and lawyers may be sued for breach of the fiduciary duty. While these two causes of action are usually alleged simultaneously, …

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Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook Jan 2007

Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook

St. Mary's Law Journal

Present and former employees of an opposing party are often the best source of information concerning that party’s activities. Contact with these employees or their representatives may be considered ethical or unethical depending on the circumstances. Unfortunately, the rules governing such contacts are neither clear nor consistent. The first issue lawyers must resolve is whether the present and former employees are considered “represented” under Rule 4.2 of the Model Rules of Professional Conduct. If they are “unrepresented” for purposes of Rule 4.2, the issue then becomes whether Rule 4.3 applies. Of grave importance are the potential sanctions, which include the …

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Recent Developments In Texas Legal Malpractice Law The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Kellie M. Hinson, Elizabeth A. Snyder Jan 2007

Recent Developments In Texas Legal Malpractice Law The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Kellie M. Hinson, Elizabeth A. Snyder

St. Mary's Law Journal

Abstract Forthcoming.

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International Legal Malpractice: Not Only Will The Dog Eventually Bark, It Will Also Bite The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Ethan S. Burger Jan 2007

International Legal Malpractice: Not Only Will The Dog Eventually Bark, It Will Also Bite The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Ethan S. Burger

St. Mary's Law Journal

The internationalization of legal practice presents numerous issues for lawyers, such as obtaining qualifications to practice law in foreign jurisdictions and developing the necessary knowledge. Different and possibly conflicting notions of standards of care and professional responsibility will arise. Globalization is widely regarded as the principal driving force in international economic and political relations. From the standpoint of business activity there are myriad ways to assess the impact of globalization. These include tracking rates of exchange, observing altered methods, or examining how attitudes and information has changed. Globalization has increased the demand for specialized accounting and legal services connected with …

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Dean Robert William Piatt Dedication., N/A N/A Jan 2007

Dean Robert William Piatt Dedication., N/A N/A

St. Mary's Law Journal

Abstract Forthcoming.

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Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik Jan 2007

Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik

St. Mary's Law Journal

Individuals who are not United States citizens and participate in violent or severe criminal activity are likely to be deported and become inadmissible for life. But noncitizens can also be deported for minor criminal activity which does not cause harm or serious damage. In such cases, deportation is an extreme punishment out of proportion to the offense. Unauthorized use of a motor vehicle (UUMV) is an example of a crime which can be committed without serious harm or damage. The Fifth Circuit regularly sustains decisions of lifetime reentry ban for noncitizens convicted of UUMV. Under immigration law, “aliens” who are …

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Automatic Tolling Of The Voluntary Departure Period - A Circuit Split Recent Development., Katherine A. Tapley Jan 2007

Automatic Tolling Of The Voluntary Departure Period - A Circuit Split Recent Development., Katherine A. Tapley

St. Mary's Law Journal

Abstract Forthcoming.

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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 Jan 2007

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 …

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The Evolving Standard For Granting Mandamus Relief In The Texas Supreme Court: One More Mile Market Down The Road Of No Return., Richard E. Flint Jan 2007

The Evolving Standard For Granting Mandamus Relief In The Texas Supreme Court: One More Mile Market Down The Road Of No Return., Richard E. Flint

St. Mary's Law Journal

The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making. In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …

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Dec. 1, 2006, R. Kyte, Ifc, Letter To B. Jenkins, Bic, Et Al Re Review Of Ehs Guidelines, Rachel Kyte Dec 2006

Dec. 1, 2006, R. Kyte, Ifc, Letter To B. Jenkins, Bic, Et Al Re Review Of Ehs Guidelines, Rachel Kyte

IFC E&S Performance Standards

No abstract provided.

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Nov. 3, 2006, Cao-About Us, Webpage, Cao Nov 2006

Nov. 3, 2006, Cao-About Us, Webpage, Cao

CAO General 1999-Present

No abstract provided.

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A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

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Oct.10, 2006, Cao, Draft Op. Guidelines With D.Hunter Margin Notes, Cao Oct 2006

Oct.10, 2006, Cao, Draft Op. Guidelines With D.Hunter Margin Notes, Cao

CAO General 1999-Present

No abstract provided.

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China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto Sep 2006

China-Australia Free Trade Agreement New Icing On An Old Cake-An Opportunity For Fair Trade?, Benedict Sheehy, Jackson N. Maogoto

ExpressO

The on-going challenge in economic development and globalization, particularly for developing countries, is the issue of development and equality in society. The issue becomes particularly problematic when confronted in matters of international trade. Often misnamed anti-globalization activists and pro-globalization activists fail to take note of the underlying assumptions that lead them to conflict—namely, the actual costs and benefits to society that result from their particular positions. In essence, both activists are searching for ways to improve the lives of people in the domestic context and to minimize the damage to their society and environment. China’s impressive economic record is threatened …

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Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy Sep 2006

Un-Fair Trade As Friendly Fire: The Australia-Usa Free Trade Agreement, Benedict Sheehy

ExpressO

Trade, economists and trade theorists advise, is a mutually beneficial exercise. Among this group, a particular set of advocates, claim that “Free Trade” is in the interest of all parties. As will be demonstrated, Free Trade is not truly “free” but an exercise of foreign policy and the implementation of policies favouring wealthy corporate interest groups. Free Trade is controlled by wealthy nations who have stacked the rules in favour of themselves, and in particular their corporate interests, and against the poor producers in poor nations. This control is used contrary to fairness, economic and ecological logic. Fair trade, by …

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Undoing The Native American Graves And Repartriation Act, Lori N. Wight Sep 2006

Undoing The Native American Graves And Repartriation Act, Lori N. Wight

ExpressO

No abstract provided.

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The Restitutionary Approach To Just Compensation, Tim Kowal Sep 2006

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

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"Five Myths About Sprawl", Michael E Lewyn Aug 2006

"Five Myths About Sprawl", Michael E Lewyn

ExpressO

The article reviews a recent book about suburban sprawl (Robert Bruegmann’s “Sprawl: A Compact History”), and shows how the book exemplifies a wide variety of misconceptions about the causes and effects of suburban sprawl. For example, Bruegmann argues that the near-universal existence of some suburban development means that sprawl is inevitable in a free society. My article responds that there is a huge difference between fundamentally pedestrian-friendly cities with some suburban development and regions where an automobile is a necessity even for city-dwellers. The article goes on to show how, by promoting auto-oriented sprawl, government made the latter situation common.

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The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein Aug 2006

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

ExpressO

In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a shift …

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The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt Aug 2006

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

ExpressO

This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in …

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Aug 1, 2006, Ifc, Draft Ehs Guidelines For Aquaculture, Ifc Aug 2006

Aug 1, 2006, Ifc, Draft Ehs Guidelines For Aquaculture, Ifc

IFC E&S Performance Standards

No abstract provided.

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Precious, Worthless, Or Immeasurable: The Value And Ethic Of Water, Gabriel Eckstein Jul 2006

Precious, Worthless, Or Immeasurable: The Value And Ethic Of Water, Gabriel Eckstein

Faculty Scholarship

This Article introduces and briefly explores some of the topics related to the value and ethics of water that were considered at the symposium, Precious, Worthless, or Immeasurable: The Value and Ethic of Water, which took place November 2-4, 2006, at the Texas Tech University School of Law. The purpose of the Symposium was to consider how this precious liquid is valued, assessed, and perceived with regard to law and regulations, economics and commerce, people and communities, culture and religion, and others aspects of society that are impacted by water. While far from a comprehensive analysis of the subject matter, …

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