Jurisprudence Commons^™

Dedication., Editorial Board St. Mary's School Of Law

St. Mary's Law Journal

Abstract Forthcoming.

Raborn V. Davis - Paycheck In Employee's Possession: A Limitation Of The Current Wage Exemption In Texas., Richard E. Flint

St. Mary's Law Journal

Extensions of credit generally help both the debtor and creditor. However, a result of our credit-based economy is that individuals are free to make poor economic decisions, and that they should suffer the consequences of these poor decisions. Although legal rules have had a role in ensuring that debtors are protected from overzealous creditors, commercial transactions can only exist if obligations of debtors are legally enforceable. The role of government, therefore, is to set parameters for procedures to enforce these obligations, while also setting a floor of protected or exempt assets so that debtors will not become wards of the …

The Whole Truth Or Nothing But The Truth - Should Attorneys Who Advertise Be Required To Disclose Prior Disciplinary Actions Taken Against Them., Sara Murray

St. Mary's Law Journal

A state should not require attorneys who advertise to disclose all prior disciplinary actions in their advertisements. Attorney advertising, like other forms of commercial speech, is not immune to state regulation. The American public deserves access to accurate information about legal services, and lawyers have a duty to provide such information. However, attorneys and all other citizens have a constitutional right not to speak. A state must balance the competing interests carefully when the public’s right to know clashes with an individual’s right not to speak. There are several arguments against requiring attorneys to disclose all prior disciplinary actions in …

Texas' New Trademark Antidilution Statute - Useful Or Useless New Protection For Texas Trademarks., Richard Taylor

St. Mary's Law Journal

Texas courts must set forth clear and concise guidelines for trademark antidilution enforcement. The adoption of a trademark antidilution statute substantially alters Texas trademark law. The statute allows a trademark owner to enjoin acts which dilute a registered or common law trademark’s distinctive quality. It applies whether competition exists between the parties or a likelihood of confusion exists as to the owner of the mark. The statute adds a new dimension to trademark protection in Texas because it creates a property interest in the trademark. As promising as these protections sound, the new antidilution statute may prove ineffective due to …

Texas Adopts The Outstanding Balance Method Of Determining Whether Monies Bid At A Foreclosure Sale Involving Wraparound Mortgages Generate Excess Proceeds Or Constitute A Deficiency., Cynthia K. Brotman

St. Mary's Law Journal

Abstract Forthcoming.

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” …

Property Rights Of Unmarried Cohabitants In New York: Proposal For Legislative Action Towards A More Equitable Future, Helene Kulczycki

Touro Law Review

No abstract provided.

Construction On The Road To Recovery: New York Limits Loss Of Enjoyment Of Life, Bonnie Sue Goodman

Touro Law Review

No abstract provided.

The Pattern Of Racketeering Element Of Rico Liability, Committee On Federal Courts Of The New York State Bar Association

Touro Law Review

No abstract provided.

Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas

Touro Law Review

No abstract provided.

Assumption Of Risk In New York Under Cplr 1411: Complete Bar Or Comparative Fault?, Thomas P. Lalor

Touro Law Review

No abstract provided.

Rowe V. State Bank Of Lombard: The Key To Unlocking A Landlord's Duty To Provide Security, 23 J. Marshall L. Rev. 131 (1989), Jeffrey Fowler

UIC Law Review

No abstract provided.

Dralle V. Ruder: Did The Decision Close The Book On Recovery For Society And Companionship In Illinois Or Just Turn The Page, 22 J. Marshall L. Rev. 721 (1989), Frank I. Powers

UIC Law Review

No abstract provided.

Texas Oil And Gas Leases Contain Separate And Distinct Implied Covenant To Further Explore After Lucrative Production., E. Joy Jackson Sparks

St. Mary's Law Journal

In Sun Exploration & Production Co. v. Jackson, the Texas Supreme Court held Texas oil and gas leases contain a separate and distinct implied covenant to further explore after lucrative production. A lease that grants an interest in oil and gas found beneath the ground surface holds several implied covenants. Once successful production begins on a leasehold, implied covenants arise to encourage cooperation between the lessor and the lessee. A covenant is a “promise” between two or more parties to perform or not to perform a specific act. A covenant may be expressly stated within a contract or implied by …

Jury Trials In The Bankruptcy Courts: Awaiting A Final Verdict., Ann Van Bever, V. Craig Cantrell

St. Mary's Law Journal

No abstract provided.

Miranda Warnings Sufficient To Inform Defendant Of Sixth Amendment Right To Counsel For Postindictment Interrogations., David M. Shearer

St. Mary's Law Journal

Abstract Forthcoming.

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

St. Mary's Law Journal

Abstract Forthcoming.

Hazardous Chemicals In The Workplace: The Employer's Obligation To Inform Employees And The Community., Nelson A. Clare

St. Mary's Law Journal

Significant changes have recently occurred in reporting requirements for employers who have hazardous chemicals in their workplaces. The amended Federal Hazard Communication Standard requires private employers, engaged in a business using hazardous chemicals, to communicate to employees the potential hazards. The Standard requires employers to use: 1) a Hazard Communication Program, 2) labels and other forms of warning, 3) material safety data sheets, and 4) information and training about hazardous chemicals. Local and state governments must compare and reconcile the various and complex provisions relating to the Standard to ensure compliance with all requirements of the respective laws. The Texas …