Jurisprudence Commons^™

Professor Aloysius A. Leopold: An Extraordinary Man., Gerry W. Beyer

St. Mary's Law Journal

Abstract Forthcoming.

Gradually Exploded: Confrontation Vs. The Former Testimony Rule., Tim Donaldson

St. Mary's Law Journal

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination. But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of …

Call To The Texas Legislature: The Franchise Tax Needs Substansive Changes, Not Just Rate Reductions., Alyson Outenreath

St. Mary's Law Journal

Abstract Forthcoming.

Following New Lights: Critical Legal Research Strategies As A Spark For Law Reform In Appalachia, Nicholas F. Stump

American University Journal of Gender, Social Policy & the Law

The nascent “critical legal research” movement applies the constellation of critical theory to the American legal research regime. Work in this discourse has unpacked the means through which commercial print and online legal resources (e.g., Westlaw and Lexis) insidiously channel the efforts of legal researchers, essentially predetermining research outcomes. Although legal research is commonly conceived as a normatively neutral paradigm, such commercial homogenizing agents (paired with traditional methods of legal analysis) in fact reflect and perpetuate society’s dominant interests. As grounded in the existing literature, this Article outlines novel strategies that may together constitute one potential version of a critically …

Sovereign Immunity: The Texas Department Of Transportation's Duty To Maintain Roadways Ravaged By The Eagle Ford Shale Boom., Lasca A. Arnold

St. Mary's Law Journal

While the shale boom has brought about many positive results such as economic growth and new jobs to the Eagle Ford Shale region, the ravaged roadways left in the aftermath must be addressed. The demands for equipment and manpower created by oil and gas exploration are extensive. Sadly, the Texas Department of Transportation (TxDOT)—the entity charged with maintaining and repairing roads in these affected counties—refuses to supply sufficient funding to repair the over used roadways. This pressure is exerted in rural areas where most of the roads and bridges are designed for lower volumes of traffic. In addition to the …

Indemnification Agreements For Intentional Misconduct: Balancing Public Policy And Freedom To Contract In Texas., Meagan Mckeown

St. Mary's Law Journal

Abstract Forthcoming.

The Michael Morton Act: Minimizing Prosecutorial Misconduct., Cynthia E. Hujar Orr, Robert G. Rodery

St. Mary's Law Journal

Twenty-five years ago, Texas prosecutors significantly limited the pre-trial discovery it disclosed to criminal defendants. As a result of this policy, innocent individuals accused of murder, like Michael Morton, were denied their right to due process. Michael Morton was incarcerated for twenty-five years following a wrongful murder conviction. He was denied access to crucial evidence, which included a bandana with the victim’s blood and the killer’s hair, and eyewitness accounts describing the killer at or near the time of the murder. The prosecutor purposely withheld this evidence from Michael Morton; but thanks to the efforts of the Innocence Project, he …

The Posse Comitatus Act Of 1878 And The End Of Reconstruction., Andrew Buttaro

St. Mary's Law Journal

Abstract Forthcoming.

Resolving Drug Manufacturer Liability For Generic Drug Warning Label Defects., Frank Scaglione

St. Mary's Law Journal

Although generic drugs are beneficial to consumers because they are offered as a more cost effective alternative to brand-name prescriptions, brand-name manufacturers are vulnerable to potential lawsuits because of generic drugs. Under the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act), generic manufacturers are able to quickly enter the market following the termination of a brand-name drug’s patent. As a result of the Hatch-Waxman Act, 75% of all drugs on the market are generic. The Hatch-Waxman Act, however, also requires generic drug manufacturers to duplicate the brand-name drug’s warning label. As an unintended consequence, injuries have …

Sustainability Reporting And New Governance: South Africa Marks The Path To Improved Corporate Disclosure, Ruth Jebe

Cardozo Journal of International and Comparative Law

The past decade has seen a dramatic increase in corporate disclosure of environmental and social information in the form of sustainability reporting. This growth trajectory, coupled with dissatisfaction with current reporting schemes, has fueled debate over the future of sustainability reporting. The discussion consists primarily of criticism of existing reporting systems and is often polarized between proponents of continued voluntary reporting and proponents of increased mandatory reporting. Missing from the debate is a critical recognition: the shortcomings of existing reporting mechanisms reflect the public policy drawbacks of the processes that created them.

This Article addresses the question of how to …

An Employer's Relationship With Its Recruiting Firm - Something More Than An Arm's-Length Transaction., Hannah L. Hembree

St. Mary's Law Journal

Taking advantage of the perfect storm created by an increased demand for professional services and a shortage of qualified candidates, recruiting firms search for permanent employees on behalf of employers across the nation. These searches are often characterized by non-exclusive contingency agreements wherein a recruiting firm’s entitlement to remuneration is directly tied to successful placement—ranging from 15% to 30% of a candidate’s first year salary. Though communication from interested applicants constitutes the easiest path to placement, passive candidates are quickly becoming the primary target of zealous recruiters. Passive candidates are those currently employed but open to the possibility of changing …

A History Of The Law Clinics At St. Mary's University School Of Law., Sue Bentch

St. Mary's Law Journal

Abstract Forthcoming.

The Economic Loss Doctrine As An Obstacle To Claims Of Contractual Strangers., Richard L. Reed, Richard L. Reed Jr.

St. Mary's Law Journal

Home owners, contractors, and subcontractors entering a contract to build in accordance with another’s design must be aware of their respective risks under the economic loss doctrine. The economic loss doctrine bars recovery due purely to economic loss by a party that is a contractual stranger. In a typical construction contract, a homeowner may separately contract with a contractor and a design professional. In this situation, the contractor does not have privity with the design professional and the economic loss doctrine bars the contractor from suing the design professional for economic loss. Likewise, if the homeowner hires a contractor and …

Cueing Democracy: Replacing The Texas Election Code's Title Prohibition., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Anti-Retaliation Protection For Internal Whistleblowers Under Dodd-Frank Following The Fifth Circuit Decision In Asadi., Tapas Agarwal

St. Mary's Law Journal

Abstract Forthcoming.

Defining A Health Care Liability Claim In The Post-Texas West Oaks Era., William Woolsey

St. Mary's Law Journal

Following the Texas Supreme Court’s rulings in West Oaks Hospital v. Williams and Ross v. St. Luke’s Episcopal Hospital, it remains unclear whether a non-patient’s injury in a hospital constitutes a health care liability claim (HCLC). If the trial court rules the claim is an HCLC, the plaintiff must present expert testimony. Failure to present an expert report within 120 days after filing the suit results in automatic dismissal. The Texas Supreme Court addressed this issue in West Oaks. The Court held that a claimant, suing a hospital under a theory of premise liability, need not be a patient for …

Brookshire Bros.: Cleanup On Aisle 9 - The Current Messy State Of Spoliation Law., Xavier Rodriguez

St. Mary's Law Journal

Abstract Forthcoming.

Enforcement Of Noncompetition Agreements: Protecting Public Interests Through An Entrepreneurial Approach., Griffin Toronjo Pivateau

St. Mary's Law Journal

Abstract Forthcoming.

Revenge Pornography: Exploring Tortious Remedies In Texas., Kevin B. Bennett

St. Mary's Law Journal

Abstract Forthcoming.

How Mccullen Affects San Antonio's Anti-Panhandling Ordinance., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Potential Tort Liability For Personal Use Of Drone Aircraft., Benjamin D. Mathews

St. Mary's Law Journal

In the United States, the use of personal drones has become more prevalent. Businesses now use drones to deliver products to consumers. Consumers now use drones to video and photograph special events. As a result, new laws are needed concerning personal usage of drones. The number of drone sales is predicted to double by 2024. This is reflected by companies such as Parrot, a vendor of private drones, who in the first quarter of 2014 sold 670,000 drones. Citizens whose personal liberties have been infringed upon by another individual’s use of personal drones, often resort to common law torts because …

Hamrick V. Ward: Clarifying Implied Easement Law., Courtney R. Potter

St. Mary's Law Journal

Abstract Forthcoming.

The Ancient Magna Carta And The Modern Rule Of Law: 1215 To 2015., Vincent R. Johnson

St. Mary's Law Journal

This article argues the text of the Magna Carta, now 800 years old, and reflects many of the values that are at the center of the modern concept of the Rule of Law. A careful review of its provisions reveals the Magna Carta demonstrates a strong commitment to the resolution of disputes based on rules and procedures that are consistent, accessible, transparent, and fair; and to the development of a legal system characterized by official accountability and respect for human dignity.

Lincoln V. The Proslavery Constitution: How A Railroad Lawyer's Constitutional Theory Made Him The Great Emancipator., Paul Finkelman

St. Mary's Law Journal

Abstract Forthcoming.

A Constitutional Amendment Allowing Broader Campaign-Finance Reform Would Not Criminalize Political Satire., Christopher W. Bell

St. Mary's Law Journal

Campaign finance remains a perennial issue, because contributions and expenditures define the political campaigns which shape our democracy. While a majority of the American public supports limiting campaign spending, campaign finance reform remains near the bottom of most voters’ priorities. Reformers have called the lack of the public’s interest “[o]ne of the persistent mysteries of campaign finance reform.” Citizens United v. F.E.C. focused national attention on the role of money in politics. Citizens United evoked such strong reactions, because it represents the two competing versions of the concept of freedom of speech: “free speech as serving liberty” and “free speech …

Texas Inventory Tax: Appraisal Districts' Misunderstanding Of The Law Causing Texas Retailers To Pay The Price., Timothy Johnson

St. Mary's Law Journal

Abstract Forthcoming.

Employee Recourses To Manager-Revealed Private Health Information., Molly Thomson

St. Mary's Law Journal

Abstract Forthcoming.

Deep In The Heart Of Texas: How Carbon Sequestration Will Affect Valuation Of The Subsurface., Sarah Anne Lishman

St. Mary's Law Journal

Abstract Forthcoming.

The Aftermath Of Mexico's Fuel-Theft Epidemic: Examining The Texas Black Market And The Conspiracy To Trade In Stolen Condensate., Luke B. Reinhart

St. Mary's Law Journal

Organized crime has infiltrated the oil patch, creating a theft network with an annual value of $2–$4 billion. Over the past decade, Mexican drug cartels have plundered mass amounts of natural gas condensate produced by Petróleos Mexicanos (Pemex)—the governing Mexican agency for production and export of hydrocarbons. The Mexican government has not sat by idly. Pemex’s production losses have skyrocketed from $300 million, between 2006 and 2011, to an estimated $585 million in 2013 alone. Considering derivative costs associated with these thefts, Pemex’s annual losses reach into the billions. Diversified and driven by profits derived from the United States black …

Taxation Of Series Llcs In Texas: Bigger Isn't Always Better In The Lone Star State., Alyson Outenreath

St. Mary's Law Journal

Series Limited Liability Companies (series LLCs) are not yet widely popular as an entity of choice; but just as it took many years for traditional LLCs to become widely used, there could also come a day when series LLCs are the “go-to” entity of choice. One development in the law that will aid in this process is greater certainty in state taxation of series LLCs. Texas has provided some guidance with respect to the taxation of series LLCs for Texas franchise tax purposes after the comptroller’s issuance of Comptroller Private Letter Ruling 201005184L. In this ruling, the comptroller concluded that …