Health Law and Policy Commons^™

The Case For The Rodeo: An Analysis Of The Houston Livestock Show And Rodeo’S Inverse Condemnation Case Against The City Of Houston, Emilio R. Longoria

St. Mary's Law Journal

On March 11, 2020, Mayor of Houston, Sylvester Turner, (the Mayor) forced the Houston Livestock Show and Rodeo to close in order to slow the transmission rate of COVID-19 (coronavirus disease 2019). This use of the Mayor’s police powers caused a severe economic disruption, which the Rodeo is still recovering from today. This Article makes the case that the City’s forced closure of the Rodeo was a compensable taking under the Fifth Amendment to the U.S. Constitution and Article 1, Section 17 of the Texas Constitution—regardless of the fact the City acted pursuant to its police powers. Such a finding …

The World Health Organization: A Weak Defender Against Pandemics, Chenglin Liu

Faculty Articles

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO's delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and …

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

Faculty Articles

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 …

21 In The 21st—An Evaluation Of The Tobacco Regulation Trend, Casey Kellum

St. Mary's Law Journal

Tobacco regulation persists as a controversial issue both legally and politically in the United States. Throughout American history, states rely on local legislation to provide adequate protection to consumers of tobacco products, as “Big Tobacco” targets consumers for its addictive product. One of the most recent amendments in this arena is the state by state decision to raise the minimum legal sales age for tobacco to twenty-one.

Despite rigorous regulation of tobacco products in the United States, however, tobacco remains the leading cause of preventable deaths in the country. These “Tobacco 21” ordinances come at a critical time when the …

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

Recognizing The Need For Mental Health Reform In The Texas Department Of Criminal Justice, Kara Mchorse

St. Mary's Law Journal

The ways in which mental health care and the criminal justice system interact are in desperate need of reform in Texas. The rate of mental illness in Texas is higher than the current state of mental health care can provide for. While state hospitals were once the primary care facilities of those with mental illness, the Texas Department of Criminal Justice (TDCJ) has taken on that role in the last few decades; and when the criminal justice system becomes entangled with mental health care, it often leads to “unmitigated disaster.” If Texas continues to allow the TDCJ to act as …

Through The Icu Darkly: Transparency And The Texas Advance Directives Act, John J. Locurto

Faculty Articles

Conflicts arise when a physician deems life-sustaining interventions futile, but a patient or surrogate presses for treatment to continue. The Texas Advance directives Act uses a procedural approach to resolve these disputes. The Act’s multi-step scheme is nationally recognized, yet the public knows little about how it works. The Texas legislature should fix this by requiring hospitals to report how they use the Act’s dispute resolution mechanism.

Texas Landfills: The Need For Administrative Reform Of The Texas Commission On Environmental Quality’S Permitting Process, William Todd Keller Jr.

St. Mary's Law Journal

Abstract forthcoming

Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser

St. Mary's Law Journal

Abstract forthcoming

Population Law And Policy: From Control And Contraception To Equity And Equality, Victoria Mather

St. Mary's Law Journal

Abstract forthcoming

The Impact Of H.B. 214: A Critical Analysis Of The Texas "Rape Insurance" Bill, Lucie Arvallo

St. Mary's Law Journal

Texas House Bill 214 (H.B. 214) is subject to challenge under the Supreme Court precedent protecting a woman’s right to choose. Passed in 2017, H.B. 214 regulates Texas insurance markets by prohibiting coverage for an elective abortion unless a woman affirmatively opts into such coverage through a separate contract and pays a separate premium. Similar restrictions on insurance coverage for elective abortion in other states have been met with mixed results in the courts. What sets H.B. 214 apart from other regulations of insurance coverage for abortion is that it does not include any exceptions for abortions in cases of …

Ethical Cannabis Lawyering In California, Francis J. Mootz Iii

St. Mary's Journal on Legal Malpractice & Ethics

Cannabis has a long history in the United States. Originally, doctors and pharmacists used cannabis for a variety of purposes. After the Mexican Revolution led to widespread migration from Mexico to the United States, many Americans responded by associating this influx of foreigners with the use of cannabis, and thereby racializing and stigmatizing the drug. After the collapse of prohibition, the federal government repurposed its enormous enforcement bureaucracy to address the perceived problem of cannabis, despite the opposition of the American Medical Association to this new prohibition. Ultimately, both the states and the federal government classified cannabis as a dangerous …

Too Little Too Late: The Infeasibility Of Osha's Silica Standards In The Oil Industry, Cali M. Franks

St. Mary's Law Journal

Abstract forthcoming

Health Care Referrals Out Of The Shadows: Recognizing The Looming Threat Of The Texas Patient Solicitation Act And Other Illegal Remuneration Statutes, Trenton Brown

St. Mary's Law Journal

Abstract forthcoming

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

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

Abstract forthcoming

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

The English Rule - It Ain't English, And Ought Not Be American., Timothy M. Mulligan

St. Mary's Law Journal

Abstract Forthcoming.

No Appropriation Without Compensation: How Per Se Takings Of Personal Property Check The Power To Regulate Commerce., William Sumner Macdaniel

St. Mary's Law Journal

Abstract Forthcoming.

The Demise Of Anti-Panhandling Laws In America., Natie Pilgram Neidig

St. Mary's Law Journal

Abstract Forthcoming.

United States V. Mcintosh: Ninth Circuit Limits Federal Prosecutors From Spending To Enforce Marijuana Laws In Medicinal States., Daniel Haley

St. Mary's Law Journal

Abstract Forthcoming.

The Exclusionary Rule And The Dueling Legacies Of Utah V. Streiff: Which Will Be Suppressed., Marcos Herrera

St. Mary's Law Journal

Abstract Forthcoming.

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

Pipe(Line) Dreams Post-Denbury Green., Nicholas Laurent, Christopher Oddo

St. Mary's Law Journal

In Denbury Green Pipeline-Texas, LLC v. Texas Rice Land Partners, the Beaumont Court of Appeals articulated the test that should be applied when considering whether the condemnation of private property, which would result favorably for pipeline companies, should be allowed. In Denbury, the Beaumont Court of Appeals balanced the protection of private property rights against the need for true common carrier pipeline companies to condemn private property. The court held that in order to condemn private property, a substantial public interest must exist to justify such condemnation. The Texas Supreme Court, however, reversed the decision of the Beaumont Court of …

Covenants Running With The Land., Michael P. Pearson

St. Mary's Law Journal

The analysis of real covenants in wellhead contracts (e.g., gas purchasing, gathering, processing, etc.) by Texas courts has not been consistent. As a result, some bankruptcy courts are holding that a debtor in bankruptcy is not liable for a prior contractual obligation, unless the covenant is held to be a real covenant running with the land. For instance, the holding in In re Sabine Oil & Gas Corp. (Sabine I) contradicts the holdings in Westland Oil Development Corp. v. Gulf Oil Corp. and in Inwood North Homeowners' Association, Inc. v. Harris. The Sabine I court held that because the Acreage …

Tx Rice V. Denbury., Thomas Alan Zabel

St. Mary's Law Journal

Abstract Forthcoming.

Force Majeure: How Lessees Can Save Their Leases While The War On Fracking Rages On., Allison R. Ebanks

St. Mary's Law Journal

Abstract Forthcoming.

A New Remedy For Junk Science: Article 11.073 And Texas's Response To The Changing Landscape In The Forensic Sciences., Trevor Rosson

St. Mary's Law Journal

Abstract Forthcoming.

The Ethics Of Inter Partes Review Before The Uspto., Dorian Ojemen

St. Mary's Law Journal

Abstract Forthcoming.

The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism., L. Wayne Scott

St. Mary's Law Journal

When lawyers are well prepared, know the law, present the law, and have it ignored by judges who interpret the law in their own way, it can be frustrating. When courts publish opinions embodying this attitude, students, too, become frustrated or conclude that the law is whatever judges decide it should be. This Article does not focus on unethical judges who decide cases with wrong motives but, rather, it focuses on ethical judges who are faced with “hard” cases and have the dilemma of deciding the case, either by the rule or by the judge’s concept of fairness. In both …