Immigration Law Commons^™

Employer's Burden Of Rebutting Prima Facie Case Under Disparate Impact Theory Is One Of Production While Ultimate Burden Of Persuasion Remains With Complainant., Erik R. Sunde

St. Mary's Law Journal

Abstract Forthcoming.

Justice Franklin Spears Dedication., Thomas R. Phillips

St. Mary's Law Journal

No abstract provided.

Applying Edgewood V. Kirby To Analysis Of Fundamental Rights Under The Texas Constitution., Albert H. Kauffman, Carmen Maria Rumbaut

St. Mary's Law Journal

State constitutions are affirmative grants of power under which both stated and implied fundamental rights can be sought. A proposed test for fundamental rights under the Texas Constitution looks at three factors: the history of the topic within the Texas Constitution and case law; the actual language used in the controlling provision; and the importance of that value to the people of Texas. The declaration of a constitutional right as fundamental certainly has implications for future relationships between the people and the government.

The Edgewood v. Kirby case has the potential to change much in Texas. The case stands for …

What Price Innocence - A Realistic View Of The Innocent Landowner Defense Under Cercla., Debra L. Baker, Theodore G. Baroody

St. Mary's Law Journal

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) to provide the federal government and the states with authority to clean up hazardous waste sites. This article discusses the significance of the so-called “innocent landowner defense” under CERCLA. This Act imposed liability on landowners regardless of the landowner’s contribution to, or awareness of, the presence of hazardous substances on their acquired property. The exceedingly, and apparently unintentionally, harsh impact of CERCLA liability soon became apparent. This article addresses a brief summary of the statute and the manner in which the innocent landowner defense came into existence. …

Is Lemon A Lemon - Crosscurrents In Contemporary Establishment Clause Jurisprudence., Stuart W. Bowen Jr.

St. Mary's Law Journal

No abstract provided.

An Employer Cannot Avoid Its Obligation To Contribute To An Employee-At-Will's Pension Plan By Terminating The Employee., Carol Jendrzey

St. Mary's Law Journal

In McClendon v. Ingersoll-Rand Co., the Texas Supreme Court held an employer cannot avoid its obligation to contribute to an employee-at-will’s pension plan by terminating the employee. A minority of jurisdictions recognize an implied contract exception to the employment-at-will doctrine allowing termination only with cause. In these jurisdictions, employers who raise the defense of statute of frauds because there is no written employment contract may be defeated by the terms of employment articulated in employee handbooks and manuals. Though both the legislatures and the courts recognize a public policy interest in protecting employee pension plans, the United States Supreme Court …

A Practical Guide To The Admissibility Of Novel Expert Evidence In Criminal Trials Under Federal Rule 702., Cathleen C. Herasimchuk

St. Mary's Law Journal

No abstract provided.

Digital Audio Recording Technology: Challenges To American Copyright Law., Douglas Reid Weimer

St. Mary's Law Journal

This Article discusses the objectives of American copyright law, its development and its current day codification. The inception of digital audio recording technology (“DAT”) raises new challenges for American copyright law. American copyright is a constitutionally sanctioned and legislatively accorded form of protection for authors against the unauthorized copyright of their “original works of authorship.” A significant copyright issue is the ability of DAT to reproduce nearly perfect copies of copyrighted musical works. This Article further discusses certain aspects of copyright law, such as the fair use defense and the concept of “home” for the purposes of copyright protection. The …

The Stagnation Of Texas Ground Water Law: A Political V. Environmental Stalemate., Karen H. Norris

St. Mary's Law Journal

The rapidly increasing Texas population coupled with the scarcity of water resources has created an urgent need for regulation of ground water pumpage. The extraction of ground water in Texas remains largely unregulated. Texas landowners, by virtue of their surface ownership, have property rights in all underlying ground water. As such, Texas landowners have the right to unlimited pumpage of the ground water beneath their land. Texas landowners have jealously guarded this right at the expense of our environment and future water resources. The Texas legislature created conservative underground water districts to help preserve water resources. However, the limited scope …

Benign Classification Based On Race Must Be Narrowly Tailored To Achieve A Compelling Governmental Interest., Martha J. Hess

St. Mary's Law Journal

In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, …

The Original Intent Of The Education Article Of The Texas Constitution., Mikal Watts, Brad Rockwell

St. Mary's Law Journal

Abstract Forthcoming.

Current Procedures For Performing Meaningful Discussions In Federal Negotiated Procurements Are Uneconomical, Inefficient, And Ineffective - A Proposal For Improvement., Howard L. Speight

St. Mary's Law Journal

Abstract Forthcoming.

Nonparties To Employment Discrimination Consent Decrees May Attack, In A Collateral Lawsuit, Decisions Made Pursuant To The Decrees., Michael T. Larkin

St. Mary's Law Journal

In Martin v. Wilks, the United States Supreme Court held nonparties to employment discrimination consent decrees may attack, in a collateral lawsuit, decisions made pursuant to the decrees. A consent decree is a voluntary judgment between parties which facilitates settlement of litigation by providing one party with equitable relief. Courts retain jurisdiction over parties to a consent decree, and they can issue contempt orders to parties violating the terms of the decree. Unlike judgments, the parties cannot challenge the consent decrees, except in limited circumstances. Recently, federal courts have widened the scope of preclusion law by defining the term “claim” …

In Memoriam.

St. Mary's Law Journal

Abstract Forthcoming.

Limitation Of Liability Of Limited Partners While Affording Control Of Partnership Affairs To Limited Partners., Kenneth L. Bennight Jr., Troy (Trey) S. Martin Iii

St. Mary's Law Journal

This article examines the liability provisions of the Texas Revised Act Section 3.03 and compares it with other uniform limited partnership acts. It attempts to ascertain the amount of control a limited partner can exercise over the partnership without risking unlimited liability as a general partner. Limited partners invest capital and share in the profits of the business, but their liability is limited to the amount of capital they invest. If the limited partners exercise control over the business, however, the limited partners may forfeit their limited liability and become liable as general partners. In the last century, the law …

The American Dream—For The Lucky Ones: The United States' Confused Immigration Policy, Garnet K. Emery

University of Arkansas at Little Rock Law Review

No abstract provided.

Medical Examination Of Aliens: A Policy With Ailments Of Its Own?, Victoria L. Bennett

University of Arkansas at Little Rock Law Review

No abstract provided.

Truth, Strangers, And Fiction: The Illegitimate Uses Of Legal Ficton In Immigration Law, Ibrahim J. Wani

Cardozo Law Review

No abstract provided.

The Status Of Section 5 Of The Immigration Marriage Fraud Amendments Of 1986 Since Smith V. Ins: No Relief From The Courts But A Hope For Amendment, Michael Evans

BYU Law Review

No abstract provided.

Report Of The Committee On Immigration And Nationality Law Of The Association Of The Bar Of The City Of New York: An Analysis Of Discrimination Resulting From Employer Sanctions And A Call For Repeal, Martha F. Davis, Lucas Guttentag, Allan H. Wernick

San Diego Law Review

In this Article, Ms. Davis and Messrs. Guttentag and Wernick analysis the legislative history of the Immigration Reform and Control Act (IRCA) signed into law on November 6, 1998. Their analysis indicates that in preparing the Act, the Government Accounting Officer (GAO) adopted an unduly stringent standard, limiting the types of employment discrimination relevant to its inquiry, understating the level of discrimination reflected in the data and requiring quantification of the victims of any discrimination and evidence of a wide geographic or cross-industry spread of discrimination. After setting forth its analysis, the Committee on Immigration and Nationality Law of the …

Swords Into Ploughshares: Why The United States Should Provide Refuge To Young Men Who Refuse To Bear Arms For Reasons Of Conscience, Karen Musalo

San Diego Law Review

In this Article, Professor Musalo argues that fulfillment of the letter and spirit of the Refugee Act requires granting asylum to "conscientious objectors." The U.S. passed the Refugee Act in 1980 and set forth within it a definition of refugee. Overtime, the INS has advocated for a limitation to this definition and the Board of Immigration Appeals (Board) has generally acquiesced. As interpreted, the young man who flees his home country rather than be forced to join the military and participate in activities in violation of his religious, moral, or political convictions either can not seek political asylum in the …

Review Of Visa Denials: The American Consul As 20th Century Absolute Monarch, Leon Wildes

San Diego Law Review

In this Article, Mr. Wildes argues that the lack of any meaningful administrative or judicial review of the denial of United States entry visas is one of the major outrages of the American immigration system. The issue arises out of a denial of certiorari in Centeno v. Shultz, an appeal from the Fifth Circuit Court of Appeals. The Court of Appeals had held that a consular determination denying an alien's application for a visitor's visa to the U.S. was not subject to judicial review. The court argued it lacked jurisdiction. The author questions the power of Congress to limit the …

From Definition To Exploration: Social Groups And Political Asylum Eligibility, Maureen Graves

San Diego Law Review

In this Article, Professor Graves argues that courts should neither pioneer nor acquiesce in attempts to reduce asylum eligibility to a level more "realistic" than that mandated by Congress. Mr. Graves argues that undue obstacles already exist for political asylum applicants. The government is raising the bar even higher by defining and applying the concept of "persecution" on account of "membership in a particular social group." In its attempts to define these words, the Judiciary has come into conflict with flexibility intended by Congress when it passed the Immigration and Nationality Act. The Article examines the congressional intent and the …

Restricting The Use Of Sound-Alikes In Commercial Speech By Amending The Right Of Publicity Statute In California, Katherine L. Blanck

San Diego Law Review

In this Comment, the author discusses the trend in the entertainment and advertising media of selling celebrity personas in connection with the promotion of commercial products. The trend has progressed such that advertisements are using an imitation of a celebrity voice to attract attention to a product. These advertisements are dubbed "sound-alike" commercials because they involve a third person attempting to sound like a particular celebrity. The author argues that the current legal framework is inadequate to protect the rights of the celebrity. He suggests that the California legislature amend the right of publicity statute to encompass these vocal imitations. …

Freitas After Villegas: Are Sneak-And-Peek Search Warrants Clandestine Fishing Expeditions, Gail Armist

San Diego Law Review

This Note examines federal circuit law in the area of covert warrants. Specifically it discusses a Second Circuit Court of Appeals decision upholding a warrant that authorized surreptitious entry into private premises in light of Ninth Circuit law striking down a similar warrant for failure to provide for reasonable post search notice. The author analyzes the potential effects of the Second Circuit's decision on the area of covert warrants in the Ninth Circuit and examines the constitutionality of these warrants. After placing the covert warrants in the context of the Constitution, Title III of the Omnibus Crime Control and Safe …

National Collegiate Athletic Association V. Tarkanian: If Ncaa Action Is Not State Action, Can Its Members Meaningfully Air Their Dissatisfaction, Susan Westover

San Diego Law Review

In National Collegiate Athletic Association v. Tarkanian, the United States Supreme Court held that the NCAA is not amenable to the constitutional restraints of the fourteenth amendment. Specifically, the Court found that certain conduct by the NCAA in its appellate procedures is not state conduct, a requirement necessary to invoke the fourteenth amendment. This Note addressed the significance of the Court's finding. It argues that adherence to the above rule may lead to an inequitable and inadequate procedure for student athletes and member schools. In conclusion, the Note presents a viable alternative for those members seeking fair procedural treatment when …

The Mccarran-Walter Act And Ideological Exclusion: A Call For Reform, Alison E. Clasby

University of Miami Law Review

No abstract provided.

Chadha, Abner J. Mikva

Michigan Law Review

A Review of Chadha by Barbara Hinkson Craig

An Historical Analysis Of Alien Land Law: Washington Territory And State 1853-1889, Mark L. Lazarus Iii

Seattle University Law Review

The purpose of this Article is to analyze the historical development of Washington's alien land law from the birth of the territory in 1853 to the drafting of the state constitution in 1889. Because alien land law necessarily involves relationships among people, this Article focuses not only on historical legal sources such as statutes, constitutional material, and judicial opinions, but also on the underlying social forces that compelled change in the law. This Article consists of three sections, the first of which is a brief discussion of the common-law roots of alien land disability in feudal England and its subsequent …

How An Errorless Judgment Can Become Erroneous., Robert W. Calvert

St. Mary's Law Journal

Abstract Forthcoming.