Environmental Law Commons^™

Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo

St. Mary's Law Journal

Abstract Forthcoming.

Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle

St. Mary's Law Journal

The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the …

Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer

St. Mary's Law Journal

In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by …

Arnold Schwarzenegger And Our Common Future, Sarah Krakoff

Publications

No abstract provided.

Integrating Local Waterfront Revitalization Into Local Comprehensive Planning And Zoning, Patricia E. Salkin

Scholarly Works

By 2004, more than half of the United States population resided within fifty miles of the coastline, contributing to the mounting pressures on waterfront development. Local waterfront revitalization plans have great potential to efficiently guide community and coastal development in a coordinated fashion across municipal boundaries. Coordination includes intermunicipal and intergovernmental cooperation and consistency as well as coordination between planning and land use controls within the coastal zone and within the boundaries of coastal communities. Part I of this article examines the history of the Coastal Zone Management Act (CZMA)with a particular examination of the Act's impact on local comprehensive …

The Ecology Of Breastfeeding, Kim Diana Connolly

Journal Articles

This essay reflects on the ecological advantages of breastfeeding, and argues that that laws promoting and supporting breastfeeding should be included among laws labeled as “environmental.”

The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie

St. Mary's Law Journal

Oil and gas leases normally do not set a fixed price for calculating royalty payments. Instead, oil and gas leases commonly tie royalty calculations to a more flexible yardstick, including “market value” or “net proceeds”. This flexibility allows the lease relationship to survive any dramatic volatility in oil and gas prices, while the same fixed price may be inadequate in shifting markets. Conversely, the flexibility may place lessors and lessees in a position of inherent conflict. In particular, parties vehemently disagree about the proper location for applying the yardstick. Historically, lessees have enjoyed the better side of the argument; though, …

Jurisdictional Mismatch In Environmental Federalism, Jonathan H. Adler

Faculty Publications

Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged, or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. In addition, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional …

The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan

St. Mary's Law Journal

Often, the validity of a will is called into question in situations where the testator failed to execute the will in compliance with statutory formalities, although the intent to create a will was present. In Texas, harmless errors in the execution of a will are not excused, and the testator must comply with the statutory formalities set out in the Probate Code. Strict judicial adherence to statutory formalities leads to unjust results in situations where it is relatively clear that the testator intended to create a will but failed to comply with the execution requirements. The failure to comply with …

Securing One's Fourth Amendment Rights Through Issue Preclusion: Assessing Texas's Application Of Collateral Estoppel To Multiple Suppression Motions Filed In Separate Courts., Garrett T. Reece

St. Mary's Law Journal

This Comment will assess the split in Texas courts over the issue of collateral estoppel’s application in different motion to suppress hearings. By placing collateral estoppel within the confines of the Double Jeopardy Clause, federal law essentially extinguished one form of collateral estoppel and invented another form of the doctrine. Remnants of both forms are still alive, however, and Texas is one state in which both forms of collateral estoppel may be invoked in a criminal proceeding. Part II provides a historical analysis of the exclusionary rule, Double Jeopardy Clause, and collateral estoppel’s rise in criminal court. Part III addresses …

Unconstitutional Delegation Of Prosecutorial Discretion In Texas: The Pollution Of Environmental Violation Deterrents., Suzanne M. Jost

St. Mary's Law Journal

The split amongst Texas officials regarding how to address the growing problem of enforcing environmental laws can most clearly be seen in the legislation surrounding environmental crimes. The most notable aspect of the 2003 amendment to the Texas Water Code (TWC) requires permission from the Texas Commission on Environmental Quality (TCEQ) before criminal charges may be brought against permit holders for criminal violations. The purpose of TCEQ’s administrative penalties is to focus primarily on pushing companies into compliance with the code. Yet, the TWC amendment brings the entire spectrum of polluters, from corporate dumpers to individual litterbugs, under its primary …

Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba

St. Mary's Law Journal

The unpredictability of court decisions on covenants not to compete is an attorney’s nightmare in Texas. The Texas Supreme Court's decision in Light v. Centel Cellular (Light II), holding that trade secrets may serve as independent consideration for a valid covenant not to compete, has only exacerbated the situation. Currently, attorneys and clients alike are at the mercy of judicial unpredictability. Texas courts have managed to muddle their own underlying public policy on covenants not to compete with trade secrets. During the years preceding Light II, Texas courts consistently struck a balance between the legitimate rights of employers to protect …

Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson

St. Mary's Law Journal

Construction is the largest industry in the United States, and some regard the industry as the engine of the nation’s economy. Only the unavailability of unskilled labor can slow the growth of the construction industry in Texas. As such, Texas has welcomed the construction boom and has enacted statutes to accommodate further industry growth. Texas’ first legislative response came in the form of the Residential Construction Liability Act (RCLA). The RCLA alleviated liability for builders incurred under the Deceptive Trade Practices Act (DTPA). In 2003, the Texas Legislature continued to legislate in favor of builders by passing the Texas Residential …

Electronic Discovery: Not Your Father's Discovery., Howard L. Speight, Lisa C. Kelly

St. Mary's Law Journal

This Article examines recent developments in several areas of electronic discovery. It discusses spoliation, cost shifting, form of production, and recent developments in the case law. Additionally, this Article discusses the Texas Rules of Civil Procedure, revisions to the Federal Rules of Civil Procedure and local rules, as well as recommendations of the American Bar Association (ABA) regarding electronic discovery. In Zubulake v. UBS Warburg LLC, I-VI, Judge Scheindlin of the Southern District of New York, set out her vision for the management of electronic discovery. It is a sobering vision, with clarified responsibilities for counsel. Increasing the role of …

Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso

St. Mary's Law Journal

In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …

Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman

St. Mary's Law Journal

Abstract Forthcoming.

Unintentional Franchising., Mark H. Miller

St. Mary's Law Journal

The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.

Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion

St. Mary's Law Journal

The Texas judiciary should give “good cause” a single meaning. Ambiguity exists concerning the phrase “good cause” amongst Texas courts. Three different standards of “good cause” currently exist in Texas including: the Stelly/Craddock standard, the Alvarado standard, and the Remington Arms standard. Under the Stelly/Craddock standard—if withdrawal of deemed admissions is requested—“good cause” is required showing the failure was unintentional as a result of an accident or mistake. Under the Alvarado standard—if the request is to offer testimony of a witness who was not timely identified—the court requires a more strict showing of “good cause” not satisfied by an attorney’s …

Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl

St. Mary's Law Journal

Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …

Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg

St. Mary's Law Journal

The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. …

Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice

St. Mary's Law Journal

Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases. Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …

Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom

St. Mary's Law Journal

In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford …

Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris

St. Mary's Law Journal

Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …

Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore

St. Mary's Law Journal

The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for …

The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long

St. Mary's Law Journal

While few in the legal profession would refer to clients as “property”, it is difficult to think some lawyers do not believe they possess something similar to property rights in their retainer agreements with clients. Not surprisingly, a tortious interference claim is a viable option for an attorney who feels that another attorney has wrongfully “stolen” a client or otherwise interfered with the attorney’s “property.” Courts have traditionally been reluctant to hold attorneys liable for litigation conduct that results in harm to adversaries or their attorneys. Plaintiff-attorneys generally have a better chance of succeeding when they complain that another attorney—while …

Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow

St. Mary's Law Journal

Legal malpractice jurisprudence is a dynamic and evolving area of Texas law. In its evolution, many issues have arisen regarding potential areas for attorney liability and discipline. The Texas Supreme Court opinion in Alexander v. Turtur & Associates, Inc. discusses the “suit within the suit” requirement for causation in litigation malpractice cases. The case also raised an important question—whether and in what circumstances causation should be treated as a question of law for the trial judge in the malpractice case, rather than as a question of fact for the jury. The Alexander opinion suggests that both the jury submission issues …

The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone

St. Mary's Law Journal

Traditionally, the legal profession prides itself on its ability to self-regulate and prefers to “take care of its own” in the disciplinary realm. The Model Court Rule on Insurance Disclosure (the Rule) invites an initial effort toward the legal profession’s self-regulating ideals and client protection. The Rule requires private practice attorneys to report to their state whether they plan to maintain liability insurance, which is then disclosed to the public. Unfortunately, the Rule’s ambiguous language and requirements create worrisome issues for both the attorney and client. Attorneys without malpractice insurance may be indirectly forced to obtain it. This expense could …

Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley

St. Mary's Law Journal

Abstract Forthcoming.

Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman

St. Mary's Law Journal

Before the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., the Fifth Circuit’s en banc decision in Rhodes v. Guiberson Oil Tools established the proper standard of causation in employment discrimination cases. The plaintiff must prove his or her protected trait was the “determinative reason” for the challenged employment action. Following Reeves, which appeared to overrule Rhodes and the doctrine of pretext plus, the Fifth Circuit struggled with the causation question. Despite the apparent confusion, the Fifth Circuit has largely reaffirmed not only its commitment to the Rhodes pretext-plus analysis, but also the determinative-reason standard for pretext cases. …

Agenda: Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional