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Articles 241 - 270 of 856
Full-Text Articles in Jurisprudence
Acquiring Separate Property On Credit: A Review And Proposed Revision Of Texas Marital Property Doctrine., James W. Paulsen
Acquiring Separate Property On Credit: A Review And Proposed Revision Of Texas Marital Property Doctrine., James W. Paulsen
St. Mary's Law Journal
The character of property acquired on credit is one of the most vexing in Texas marital property law. The apparent black letter rule is that anything acquired by either spouse on credit during the marriage is community property, unless the creditor agrees at the outset to look only to separate property for repayment. The general rule follows naturally from a core principle of Texas law that everything owned by a married person is presumed community when the basic presumption is combined with the “inception of title” doctrine. In a credit transaction, the borrower acquires some legal right to the loan …
Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott
Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott
St. Mary's Law Journal
Because of corporate scandals that shook the business world, legislative, corporate, and public fingers immediately pointed at corporate attorneys for allowing such egregious conduct to occur. In 1983, the American Bar Association (ABA) passed Model Rule 1.13, which promoted the entity theory. Under the entity theory, the organization is the in-house counsel’s only client; and the in-house counsel’s primary duty is to act in the best interest of the organization. Whether the issue is deciding to make an executive compensation disclosure in a proxy statement, taking on a dual role within the organization, acting in compliance with heightened professional responsibility …
Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos
Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos
St. Mary's Law Journal
Uncertainty over conduct which results in disqualification can be costly and the laws relating to disqualification may be widely known but their application is difficult. Rigid application of irrebuttable presumptions and imputation of knowledge may result in disqualification of a client’s chosen counsel. Even if an attorney succeeds in opposing a motion to disqualify, the resulting costs and delay may damage the attorney-client relationship more than if the attorney had simply declined the representation. Motions to disqualify usually arise from conflicts of interest involving former clients. The law of disqualification, in this instance, is well developed and largely based on …
Take The Money Or Run: The Risky Business Of Acting As Both Your Client's Lawyer And Bail Bondsman The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Dayla S. Pepi, Donna D. Bloom
Take The Money Or Run: The Risky Business Of Acting As Both Your Client's Lawyer And Bail Bondsman The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Dayla S. Pepi, Donna D. Bloom
St. Mary's Law Journal
The American Bar Association strongly discourages lawyers from being bondsmen due to the conflicts that can arise when a criminal defense attorney acts as their client's bail bondsman. These same ethical dilemmas can also be encountered in posting a bond for a client in civil matters such as probate, family law, and appeals. In Texas, lawyers are exempt from the requirements of licensure as a bondsmen, including the requirement to maintain a particular level of security to underwrite the bonds. Nonetheless, lawyers are still required to conform to the requirements regulating the practice of bondsmen. It is not enough for …
A Radical Proposal For Lifetime Professionalism The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Antonio Alvarado
A Radical Proposal For Lifetime Professionalism The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Antonio Alvarado
St. Mary's Law Journal
Undeniably, the economics of law practice motivates the profession and immerses lawyers into a new professionalism paradigm not fully addressed by existing programs and activities. Linking professionalism to economic concerns might be considered heresy by some, yet now is the time to examine why the economic realities of practicing law sometimes cut short the best aspirations for high standards. Both the American Bar Association (ABA) and the State Bar of Texas focus extensively on questions concerning professionalism in the practice of law. Lawyers face significant economic burdens from several sources, and ironically technology does not always make practice easier. Often, …
Hurricane Katrina: The Duties And Responsibilities Of An Attorney In The Wake Of A Natural Disaster The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Brenna G. Nava
St. Mary's Law Journal
Hurricane Katrina ravaged the legal system as well as the corporate world by leaving courtrooms and law firms filled with water. In the storm’s aftermath the luckiest law firms were those large enough to have offices in cities other than those directly affected by the hurricane. Many recent disasters have heavily affected the legal system, including flooded basements, office fires, hard drive crashes, terrorist attacks, tornados or earthquakes. And each new disaster brings different consequences. Those who create disaster plans are better equipped to handle and recover from each new series of setbacks. While various firms and courts made plans …
Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson
Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson
St. Mary's Law Journal
William H. Rehnquist taught for St. Mary’s University School of Law for four summers while serving as the sixteenth Chief Justice of the United States. For two weeks each July in 1991, 1994, 1998, and 2000, Rehnquist lectured on The Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. St. Mary’s has conducted the Institute as an annual five-week summer program at the University of Innsbruck since 1986, with the generous administrative support of that university’s Roman Law Institute. Rehnquist felt welcome in Innsbruck and earned the St. Mary’s …
Sentence Modification In Texas: The Plenary Power Of A Trial Court To Alter Its Sentence After Pronouncement Comment., Andrew L. Johnson
Sentence Modification In Texas: The Plenary Power Of A Trial Court To Alter Its Sentence After Pronouncement Comment., Andrew L. Johnson
St. Mary's Law Journal
Post-sentence plenary power of a trial court is not statutorily defined in Texas criminal law, and its boundaries are not fully delineated. The Texas Court of Criminal Appeals recently added to the definition of plenary power in State v. Aguilera. The definition gives state trial courts the power to modify sentences if the modification is made the same day as the initial sentence before the court adjourns and if it is made in the presence of the defendant, his counsel, and counsel for the State. This holding lessens the sentencing pronouncement’s importance; potentially turning sentencing into a day-long affair. Additionally, …
Standards Of Review In Texas., W. Wendell Hall
Standards Of Review In Texas., W. Wendell Hall
St. Mary's Law Journal
Abstract Forthcoming.
Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman
Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman
St. Mary's Law Journal
Abstract Forthcoming.
Unconstitutional Delegation Of Prosecutorial Discretion In Texas: The Pollution Of Environmental Violation Deterrents., Suzanne M. Jost
Unconstitutional Delegation Of Prosecutorial Discretion In Texas: The Pollution Of Environmental Violation Deterrents., Suzanne M. Jost
St. Mary's Law Journal
The split amongst Texas officials regarding how to address the growing problem of enforcing environmental laws can most clearly be seen in the legislation surrounding environmental crimes. The most notable aspect of the 2003 amendment to the Texas Water Code (TWC) requires permission from the Texas Commission on Environmental Quality (TCEQ) before criminal charges may be brought against permit holders for criminal violations. The purpose of TCEQ’s administrative penalties is to focus primarily on pushing companies into compliance with the code. Yet, the TWC amendment brings the entire spectrum of polluters, from corporate dumpers to individual litterbugs, under its primary …
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
Unlicensed To Drill: Proposed Renovations To The Texas Residential Construction Commission Act., Justin M. Jackson
St. Mary's Law Journal
Construction is the largest industry in the United States, and some regard the industry as the engine of the nation’s economy. Only the unavailability of unskilled labor can slow the growth of the construction industry in Texas. As such, Texas has welcomed the construction boom and has enacted statutes to accommodate further industry growth. Texas’ first legislative response came in the form of the Residential Construction Liability Act (RCLA). The RCLA alleviated liability for builders incurred under the Deceptive Trade Practices Act (DTPA). In 2003, the Texas Legislature continued to legislate in favor of builders by passing the Texas Residential …
Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow
Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow
St. Mary's Law Journal
Legal malpractice jurisprudence is a dynamic and evolving area of Texas law. In its evolution, many issues have arisen regarding potential areas for attorney liability and discipline. The Texas Supreme Court opinion in Alexander v. Turtur & Associates, Inc. discusses the “suit within the suit” requirement for causation in litigation malpractice cases. The case also raised an important question—whether and in what circumstances causation should be treated as a question of law for the trial judge in the malpractice case, rather than as a question of fact for the jury. The Alexander opinion suggests that both the jury submission issues …
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
The First Marketable Product Doctrine: Just What Is The Product., Byron C. Keeling, Karolyn King Gillespie
St. Mary's Law Journal
Oil and gas leases normally do not set a fixed price for calculating royalty payments. Instead, oil and gas leases commonly tie royalty calculations to a more flexible yardstick, including “market value” or “net proceeds”. This flexibility allows the lease relationship to survive any dramatic volatility in oil and gas prices, while the same fixed price may be inadequate in shifting markets. Conversely, the flexibility may place lessors and lessees in a position of inherent conflict. In particular, parties vehemently disagree about the proper location for applying the yardstick. Historically, lessees have enjoyed the better side of the argument; though, …
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
St. Mary's Law Journal
Before the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., the Fifth Circuit’s en banc decision in Rhodes v. Guiberson Oil Tools established the proper standard of causation in employment discrimination cases. The plaintiff must prove his or her protected trait was the “determinative reason” for the challenged employment action. Following Reeves, which appeared to overrule Rhodes and the doctrine of pretext plus, the Fifth Circuit struggled with the causation question. Despite the apparent confusion, the Fifth Circuit has largely reaffirmed not only its commitment to the Rhodes pretext-plus analysis, but also the determinative-reason standard for pretext cases. …
Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo
Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo
St. Mary's Law Journal
Abstract Forthcoming.
Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley
St. Mary's Law Journal
Abstract Forthcoming.
Determining The Indeterminate Defect., J. Gregory Marks
Determining The Indeterminate Defect., J. Gregory Marks
St. Mary's Law Journal
Abstract Forthcoming.
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
St. Mary's Law Journal
In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …
Unintentional Franchising., Mark H. Miller
Unintentional Franchising., Mark H. Miller
St. Mary's Law Journal
The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
St. Mary's Law Journal
The Texas judiciary should give “good cause” a single meaning. Ambiguity exists concerning the phrase “good cause” amongst Texas courts. Three different standards of “good cause” currently exist in Texas including: the Stelly/Craddock standard, the Alvarado standard, and the Remington Arms standard. Under the Stelly/Craddock standard—if withdrawal of deemed admissions is requested—“good cause” is required showing the failure was unintentional as a result of an accident or mistake. Under the Alvarado standard—if the request is to offer testimony of a witness who was not timely identified—the court requires a more strict showing of “good cause” not satisfied by an attorney’s …
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
Backdoor Non-Competes In Texas: Trade Secrets., Ted Lee, Leila Ben Debba
St. Mary's Law Journal
The unpredictability of court decisions on covenants not to compete is an attorney’s nightmare in Texas. The Texas Supreme Court's decision in Light v. Centel Cellular (Light II), holding that trade secrets may serve as independent consideration for a valid covenant not to compete, has only exacerbated the situation. Currently, attorneys and clients alike are at the mercy of judicial unpredictability. Texas courts have managed to muddle their own underlying public policy on covenants not to compete with trade secrets. During the years preceding Light II, Texas courts consistently struck a balance between the legitimate rights of employers to protect …
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
St. Mary's Law Journal
Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
St. Mary's Law Journal
The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. …
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
St. Mary's Law Journal
The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the …
Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice
St. Mary's Law Journal
Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases. Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
St. Mary's Law Journal
In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford …
The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan
The Effect Of A Harmless Error In Executing A Will: Why Texas Should Adopt Section 2-503 Of The Uniform Probate Court., Sean P. Milligan
St. Mary's Law Journal
Often, the validity of a will is called into question in situations where the testator failed to execute the will in compliance with statutory formalities, although the intent to create a will was present. In Texas, harmless errors in the execution of a will are not excused, and the testator must comply with the statutory formalities set out in the Probate Code. Strict judicial adherence to statutory formalities leads to unjust results in situations where it is relatively clear that the testator intended to create a will but failed to comply with the execution requirements. The failure to comply with …
Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris
St. Mary's Law Journal
Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
St. Mary's Law Journal
The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for …