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Articles 631 - 660 of 1597

Full-Text Articles in Jurisprudence

Will Contests: From Start To Finish., Joyce Moore Jan 2012

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …

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New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill Jan 2012

New Law, Old Cases, Fair Outcomes: Why The Illinois Supreme Court Must Overrule People V Flowers, 43 Loy. U. Chi. L.J. 727 (2012), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

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Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman Jan 2012

Appropriate Testing And Resolution: How To Determine Whether Appropriation Art Is Transformative Fair Use Or Merely In Unauthorized Derivative., Eric D. Gorman

St. Mary's Law Journal

This Article addresses the copyright concerns in appropriation art today and concludes that copyright law should be amended to address the complex issues found in this area of the law. Part II provides a background on appropriation art and the different facets of copyright law, including the doctrine of fair use. Part III analyzes whether appropriation art can even be considered “fair use” under the current exceptions of copyright infringement. Part IV discusses various legal tests to determine whether appropriation art that utilizes copyrighted material can exercise the doctrine of fair use against alleged copyright infringement. It also proposes a …

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Inheritance Rights Of Posthumously Conceived Children In Texas Comment., Allison Stewart Ellis Jan 2012

Inheritance Rights Of Posthumously Conceived Children In Texas Comment., Allison Stewart Ellis

St. Mary's Law Journal

The Texas Legislature should update its legislation pertaining to posthumously conceived children. More than 20,000 children are born from artificial insemination each year, some of whom are conceived following their father’s death. Whether or not these children are entitled to a share in their father’s estate is a question for each state legislature. Many states have adopted a version of the Uniform Parentage Act (UPA). The UPA states that once paternity of a posthumously conceived child is established, the child is entitled to inherit from the deceased’s estate. Texas has adopted the UPA in part and has added stringent requirements …

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Consumer Bankruptcy Policy: Ability To Pay And Catholic Social Teaching Essay., Richard Flint Jan 2012

Consumer Bankruptcy Policy: Ability To Pay And Catholic Social Teaching Essay., Richard Flint

St. Mary's Law Journal

An essay is presented on consumer bankruptcy policy in the U.S. It informs about the significant changes in the consumer bankruptcy introduced by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 including incorporation of an ability-to-pay test as a requirement for getting the benefits of the act. It reviews the Catholic social teaching related to the interrelationship between the dignity of man and his rights and duties to promote justice and the common good.

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In-House But Out In The Cold: A Comparison Of The Attorney-Client Privilege In The United States And European Union Comment., Andrew R. Nash Jan 2012

In-House But Out In The Cold: A Comparison Of The Attorney-Client Privilege In The United States And European Union Comment., Andrew R. Nash

St. Mary's Law Journal

Abstract Forthcoming.

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Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts Jan 2012

Can Immune Parties Really Be Responsible: An Analysis Of The Current Interpretation Of The Texas Responsible Third Party Statute And Its Vulnerability To Constitutional Challenge., Justin C. Roberts, Randell Roberts

St. Mary's Law Journal

The Texas Responsible Third Party (RTP) statute was amended in 2003 to give defendants the opportunity to have the jury apportion responsibility for the plaintiff’s damages to persons who were not joined in the lawsuit. A defendant could achieve this result by designating a “responsible third party.” Plaintiffs may often join responsible third parties as additional defendants. Under such situations, all culpable parties are before the court, defending themselves, and accountable to the plaintiff for their percentage of responsibility. When the statute worked in this fashion it achieved “a carefully constructed scheme balancing the interests of both defendants and claimants.” …

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Marsh Usa Inc. V. Cook: One Final Step Away From Light., Michael D. Paul Jan 2012

Marsh Usa Inc. V. Cook: One Final Step Away From Light., Michael D. Paul

St. Mary's Law Journal

Abstract Forthcoming.

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Texas's Spoliation Presumption., Rebecca Simmons, Michael J. Ritter Jan 2012

Texas's Spoliation Presumption., Rebecca Simmons, Michael J. Ritter

St. Mary's Law Journal

Abstract Forthcoming.

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Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act., John Gedid Jan 2012

Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act., John Gedid

St. Mary's Law Journal

The National Conference of Commissioners on Uniform State Laws (ULC) approved the Revised Model State Administrative Procedure Act (2010 MSAPA) in 2010. The model state administrative procedure acts (APA) have been one of the most successful endeavors of the ULC. They have played a major role in encouraging states to incorporate concepts of fairness into state agency procedure statutes and to make express provisions for judicial review of administrative action. Those states that adopted the model acts accomplished fairness goals while bringing efficiency and accuracy into the state administrative process. By providing an overview of the Act’s new features, this …

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War Powers Pursuant To False Perceptions And Asymmetric Information In The Zone Of Twilight., Robert Bejesky Jan 2012

War Powers Pursuant To False Perceptions And Asymmetric Information In The Zone Of Twilight., Robert Bejesky

St. Mary's Law Journal

Abstract Forthcoming.

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A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez Jan 2012

A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez

St. Mary's Law Journal

Citizens serving on a civil jury are entrusted with making factual decisions about disputes that impact legal rights and remedies of litigants and set standards for the behavior of the public. Unfortunately, civil jury trials take place less frequently in twenty-first century Texas than in prior eras. Part of the justice system’s rejuvenation should involve a re-evaluation and improvement of the current process for selecting civil juries. Currently, the primary flaw in Texas jury selection procedures is the one-size-fits-all approach. Because some cases need twelve impartial jurors who are lay persons, and others require twelve people who are knowledgeable of …

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Expanding Protective Order Coverage., Kellie K. Player Jan 2012

Expanding Protective Order Coverage., Kellie K. Player

St. Mary's Law Journal

The Texas legislature should eliminate the relationship requirement for a protective order. Although the Texas legislature passed the Kristy Appleby Act, which expanded the definition of dating violence, some victims of domestic violence may still be unable to qualify for a protective order. Specifically, some third-party individuals in a love triangle may not be eligible to receive a protective order. In Texas, a potential or current victim of domestic abuse needs to demonstrate a relationship with the perpetrator. Despite the broadened definition of relationship, some potential victims may still be unable to meet this burden. If the person cannot, they …

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The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis Jan 2012

The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis

St. Mary's Law Journal

Abstract Forthcoming.

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Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron Jan 2012

Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron

St. Mary's Law Journal

Abstract Forthcoming.

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A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock Jan 2012

A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.

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Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki Jan 2012

Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki

St. Mary's Law Journal

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …

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Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner Dec 2011

Legitimate Exercises Of The Police Power Or Compensable Takings: Courts May Recognize Private Property Rights, Terence J. Centner

Journal of Food Law & Policy

Under their police power, governments regulate nuisances and take actions in emergency situations. For protecting humans, animals, and plants from diseases and other pests (jointly referred to as diseases), governments order inoculations, quarantine items and people, and seize and destroy property.' With respect to plants and animals, the United States Secretary of Agriculture is authorized to prohibit the importation and movement of items than may be infested. The Secretary also has the authority to hold, treat, and destroy items to prevent the dissemination of plant and animal pests. State governments take additional actions to prevent the introduction and dissemination of …

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Current And Emerging Issues In The New Urban Agriculture: A Case Study, Kathryn A. Peters Dec 2011

Current And Emerging Issues In The New Urban Agriculture: A Case Study, Kathryn A. Peters

Journal of Food Law & Policy

Urban agriculture takes many forms, including individual gardens on privately owned land, neighborhood gardens, community gardens, and gardens located on church and school grounds, housing developments, and other publicly owned property. The most essential factors for successful urban agriculture efforts include land acquisition, zoning ordinances, access to affordable water, infrastructure, and support services such as education and outreach. Cities across the United States have formed task forces with the mission of making their cities more sustainable or strengthening the local food supply system; urban agriculture is instrumental in both of these missions. Major cities across the United States are recognizing …

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Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman Jul 2011

Our Class Action Federalism: Erie And The Rules Enabling Act After Shady Grove, Adam N. Steinman

Faculty Scholarship

The intersection of federalism and class-action litigation has been an area of significant controversy in recent years. With the 2005 Class Action Fairness Act placing more high-stakes class actions into federal court, an especially crucial question is the extent to which the Erie doctrine and the Rules Enabling Act (REA) require federal courts to follow state class-action law. The Supreme Court’s decision in Shady Grove Orthopedic Associates v. Allstate Insurance Co. begins to confront this issue, but many unanswered questions remain. Under several lines of argument that were neither made nor considered in Shady Grove, the Erie doctrine and the …

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Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii Jun 2011

Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii

Legislation and Policy Brief

In June of 2008, the Supreme Court handed down a landmark decision in District of Columbia v. Heller, declaring that a District of Columbia law prohibiting the possession of handguns in a private home for personal protection violated the Second Amendment of the Constitution.  Justice Scalia, writing for a 5-4 majority, recognized that the protections provided by the Second Amendment apply to individuals—not just “militias”—and emphatically declared that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.  These include the absolute prohibition of handguns held and used for self-defense in the home.”  After four years of …

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The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod Jan 2011

The Mystery Of Life In The Laboratory Of Democracy: Personal Autonomy In State Law, Adam J. Macleod

Cleveland State Law Review

This article attempts to carve a path between the two sides in this autonomy war. It begins by bringing into dialogue with each other four of the most influential legal philosophers of our day: Joseph Raz, Ronald Dworkin, John Finnis, and Robert George. Each of these four scholars makes bold and instructive claims about the value and limits of personal autonomy. The article then examines several different areas of state law where one might expect a principle of autonomy to be implicated, and articulates six important lessons that one can glean from state law about the relationship between personal autonomy …

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Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley Jan 2011

Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley

St. Mary's Law Journal

Each year numerous defendants appear in courts located in Texas, both state and federal, charged with offenses related to driving while intoxicated (DWI). Defendants appearing before state courts are prosecuted pursuant to Texas statutes, regulations, and binding case law. In certain circumstances, defendants appearing in federal courts face the same statutory elements of a crime and the same potential penalties as in a Texas state court. In many of the cases, however, statutory elements and potential penalties differ. Furthermore, certain rights and regulations afforded to Texas state defendants are unavailable to those charged in federal courts located in the state. …

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Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier Jan 2011

Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier

St. Mary's Law Journal

Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …

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What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley Jan 2011

What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley

St. Mary's Law Journal

Crawford v. Washington and its progeny demonstrate the difficulty of delineating both the core and the perimeter of the Confrontation Clause. Crawford abrogated Ohio v. Roberts, forcing trial lawyers to re-evaluate the use of various types of hearsay formerly admitted upon a finding of adequate “indicia of reliability.” Later the Court issued two decisions further altering the contours of Confrontation Clause jurisprudence. Michigan v. Bryant and Bullcoming v. New Mexico. With these options, the old Roberts “indicia of reliability” test transformed into the new “primary purpose” test to identify certain testimonial statements. By significantly altering the contours of Confrontation Clause …

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Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers Jan 2011

Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers

St. Mary's Law Journal

Abstract Forthcoming.

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A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham Jan 2011

A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham

St. Mary's Law Journal

Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators …

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The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs Jan 2011

The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs

St. Mary's Law Journal

The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …

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Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray Jan 2011

Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray

St. Mary's Law Journal

The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …

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A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott Jan 2011

A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott

St. Mary's Law Journal

Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …

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