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Articles 331 - 360 of 856
Full-Text Articles in Jurisprudence
An Essay On The Tort Of Negligent Infliction Of Emotion Distress In Texas: Stop Saying It Does Not Exist., Charles E. Cantu
An Essay On The Tort Of Negligent Infliction Of Emotion Distress In Texas: Stop Saying It Does Not Exist., Charles E. Cantu
St. Mary's Law Journal
The injury of emotional distress is an interesting tort, which has long perplexed the Anglo-American system of jurisprudence. While, originally, allegations of this kind did not constitute a cause of action, today, there is no question that an injured plaintiff may recover for the infliction of emotional distress. The majority and minority positions differ now only on what must be alleged and proved. Texas was the first jurisdiction in the United States to allow recovery for mental anguish. However, in 1993 in the case of Boyles v. Kerr, the Texas Supreme Court appeared to depart from the majority view when …
Appeals From Pleas Of Guilty And Nolo Contendere: History And Procedural Considerations., Kevin Yeary
Appeals From Pleas Of Guilty And Nolo Contendere: History And Procedural Considerations., Kevin Yeary
St. Mary's Law Journal
The changing history of appeal rights—made through decisional interpretation by the Texas Court of Criminal Appeals—highlights the importance of staying current on interpretations of procedural and substantive rules. Lawyers owe their clients a duty to understand the history of the right to appeal from a conviction following a guilty plea. Additionally, they owe their clients a duty to understand substantive and procedural requirements for maintaining such appeals, as well as to stay abreast of changes affecting these appeals. Recently, the Texas Court of Criminal Appeals handed down several opinions drastically reshaping the landscape for appeals following pleas of guilty and …
Doctrine Of Equivalents: Is Festo The Right Decision For The Biomedical Industry., Faith S. Fillman
Doctrine Of Equivalents: Is Festo The Right Decision For The Biomedical Industry., Faith S. Fillman
St. Mary's Law Journal
The doctrine of equivalents, which Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. threatens to overturn, is an equitable doctrine and should therefore provide patentees and competitors equal and fair protection. Prior to Festo, the Federal Circuit used two approaches: the complete bar rule and the flexible bar rule. Under the complete bar rule, the author must completely copy the patented art for infringement to occur, this is otherwise known as literal infringement. In contrast, under the flexible bar rule, infringement can occur if the product is closely related to the prior art. Federal Circuits have officially adopted the complete …
Toward A More Effective Standard Of Review: The Potential Effect Of Burdine V. Johnson On Legal Malpractice In Texas., Rebecca A. Copeland
Toward A More Effective Standard Of Review: The Potential Effect Of Burdine V. Johnson On Legal Malpractice In Texas., Rebecca A. Copeland
St. Mary's Law Journal
If the presence of a sleeping attorney is so egregious as to result in a reversal of a criminal conviction, it is surely enough to warrant the imposition of civil damages upon the same attorney. A recent trend of cases in which criminal defendants alleged ineffective assistance of counsel—due to sleeping attorneys—resulted in courts being unable to create a uniform analysis for ineffective assistance of counsel. The Sixth Amendment protects a criminal defendant’s right to effective assistance of counsel, and the Supreme Court has devised a two-prong analysis by which claims of ineffective assistance must be reviewed. Burdine v. Johnson …
Making Sense Of Pretext: An Analysis Of Evidentiary Requirements For Summary Judgment Litigants In The Fifth Circuit In Light Of Reeves V. Sanderson Plumbing Prodcuts, And A Proposal For Clarification., Eric S. Riester
St. Mary's Law Journal
Although the United States Supreme Court in Reeves v. Sanderson Plumbing Products, Inc. attempted to clarify the summary judgment landscape of Title VII employment discrimination cases, lower courts in the Fifth Circuit are still without guidance. Under Reeves, direct proof of discrimination is not required to defeat a motion for summary judgment as long as the circumstantial evidence allows a reasonable inference of discrimination. The required strength of the circumstantial evidence, however, remains a major issue in the Fifth Circuit. Since Reeves, the Fifth Circuit has not stated a uniform summary judgment standard, nor has it answered how much circumstantial …
In The Interest Of The Client: Why Reform Of Texas's Rules Regarding Referral Fees Is Necessary., Samuel V. Houston Iii
In The Interest Of The Client: Why Reform Of Texas's Rules Regarding Referral Fees Is Necessary., Samuel V. Houston Iii
St. Mary's Law Journal
Texas needs to reform its policy concerning referral fees. In Texas, an attorney is permitted to receive a fee for providing a referral to another attorney. In Brewer & Pritchard, P.C. v. Johnson, for example, the forwarding attorney received a referral fee for $3 million dollars. Proponents of referral fees argue that clients are better represented because referring attorneys have a greater economic incentive to seek out more capable attorneys. On the other hand, referring attorneys may also have the incentive to seek out attorneys who pay higher referral fees rather than those most qualified. In the end, the referred …
The Decision In United States V. Brown: The Fifth Circuit Interprets Justice Is Blind Literally., Robert M. Anselmo
The Decision In United States V. Brown: The Fifth Circuit Interprets Justice Is Blind Literally., Robert M. Anselmo
St. Mary's Law Journal
In United States v. Brown, the Fifth Circuit affirmed the district courts use of anonymous jury orders. The use of anonymous juries, however, is either a necessary protection for jury members or an unfair procedural practice. The Fifth Circuit’s support for anonymous juries included concerns over threats, intimidation, and possible attempts to influence juror members in order to secure a favorable verdict. The promise of a jury of one's peers is a cornerstone of the United States judicial system. Implicit in this guarantee is the assurance of an impartial jury. Nonetheless, a jury that sits in fear may not fulfill …
Virtually A Minor: Resolving The Potential Loophole In The Texas Child Pornography Statute., Bill W. Sanford
Virtually A Minor: Resolving The Potential Loophole In The Texas Child Pornography Statute., Bill W. Sanford
St. Mary's Law Journal
Abstract Forthcoming.
Summary Of Recent Developments In Texas Legal Malpractice Law Symposium: Legal Malpractice And Professional Responsibility., Steve Mcconnico, Robyn Bigelow
Summary Of Recent Developments In Texas Legal Malpractice Law Symposium: Legal Malpractice And Professional Responsibility., Steve Mcconnico, Robyn Bigelow
St. Mary's Law Journal
Although the number of malpractice suits may not be increasing, the way plaintiffs are pleading these suits is changing dramatically and resulting in increased potential for attorney liability. Recent changes in the nature of liability led to increased potential for damages and a trend of high dollar settlements in malpractice cases. These changes may significantly impact the ability of lawyers in Texas to avoid liability while representing clients and preserving client confidences. Texas law generally limits malpractice claims to clients against their attorneys; but non-clients are increasingly succeeding in creatively pleading causes of action by alleging fraud, conspiracy, and negligent …
Ethics: Lawyering And Professionalism., Broadus A. Spivey
Ethics: Lawyering And Professionalism., Broadus A. Spivey
St. Mary's Law Journal
Because public perception is a major issue that confronts the legal community, Texas encourages lawyers to maintain a civil, professional, and courteous environment. The work of lawyers may be divided into three parts: first, a lawyer must consider several factors when communicating with a potential client; second, a lawyer must attend to the creation of the lawyer-client relationship; and third, a lawyer must effectively manage the lawyer-client relationship. The rules of ethical deportment for attorneys are contained in the Texas Disciplinary Rules of Professional Conduct, which specifically address barratry and similar offenses related to the improper solicitation of potential clients. …
Fortifying A Law Firm's Ethical Infrastructure: Avoiding Legal Malpractice Claims Based On Conflicts Of Interest Symposium: Legal Malpractice And Professional Responsibility., Susan Saab Fortney, Jett Hanna
Fortifying A Law Firm's Ethical Infrastructure: Avoiding Legal Malpractice Claims Based On Conflicts Of Interest Symposium: Legal Malpractice And Professional Responsibility., Susan Saab Fortney, Jett Hanna
St. Mary's Law Journal
This article addresses the prevailing problem of malpractice claims based on conflicts of interest. Part I of this article introduces the topic by underscoring the seriousness of all conflicts of interest and recommending preventative action. Part II describes measures that law firms can take to detect and manage conflicts and analyzes the effect of the firm’s ability to avoid conflicts claims on a firm’s ethical infrastructure. Part III focuses on some of the most common conflicts situations that result in malpractice claims and sanctions. The discussion includes selected conflicts cases that illustrate problems and patterns. Part IV concludes by urging …
Shoot Out At The Not-O.K. Corral Or Privileged Client Communications - Lost And Found In Texas., Walter W. Steele Jr.
Shoot Out At The Not-O.K. Corral Or Privileged Client Communications - Lost And Found In Texas., Walter W. Steele Jr.
St. Mary's Law Journal
Texas’s solutions to inadvertently disclosed privileged material are unworkable. Confidentiality of client information is a bedrock of the legal profession. Nonetheless, some confidential information invariably leaks out. The most common leak occurs when a lawyer inadvertently includes privileged material in boxes of documents produced in response to a legitimate discovery request. After the opposing lawyer finds the “hot documents” in the box, the problems begin. The Texas Supreme Court adopted what amounts to the reasonable precautions test in Granada Corp. v. First Court of Appeals. The cornerstone of the Granada holding is the involuntary nature of the production of the …
Attorney-Client Conundrum: The Use Of Arbitration Agreements For Legal Malpractice In Texas., Robert J. Kraemer
Attorney-Client Conundrum: The Use Of Arbitration Agreements For Legal Malpractice In Texas., Robert J. Kraemer
St. Mary's Law Journal
Abstract Forthcoming.
Browning Oil Co. V. Luecke: Has Texas Illuminated A Dark Distinction Between Vertical And Horizontal Drilling., Stephen Taylor Dennis
Browning Oil Co. V. Luecke: Has Texas Illuminated A Dark Distinction Between Vertical And Horizontal Drilling., Stephen Taylor Dennis
St. Mary's Law Journal
Horizontal drilling technology continues to revitalize the oil and gas industry, however, many of the legal concepts governing oil and gas law have failed to keep pace. Recently, in Browning Oil Co. v. Luecke, the Third Court of Appeals of Texas dealt with the issue of whether an antidilution clause applied to both horizontal and vertical wells. The agreement between the parties did not contemplate the use of horizontal technology, however, the express language did not exclude horizontal technology. Because the agreement did not expressly exclude horizontal drilling, the court looked at the intent of the parties and ruled that …
Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez
Taas And Gi Forum V. Texas Education Agency: A Critical Analysis And Proposal For Redressing Problems With The Standardized Testing In Texas., Blakely Latham Fernandez
St. Mary's Law Journal
Texas’s use of the Texas Assessment of Academic Skills (TAAS) test as an accountability program has had numerous negative and far-reaching effects on minorities. Today, students in Texas public schools first take the TAAS test in the third grade. Students continue to take a form of the TAAS test each year, with the exit-level assessment initially given in the eleventh grade. Students must pass all four sections–Mathematics, English, Science, and Social Studies–in order to graduate and receive their high school diploma. Although devised to effectively motivate students, schools, and teachers with the goal of enhancing educational standards, the TAAS test …
Fair Labor Standards Act And Sovereign Immunity: Unlocking The Courthouse Door For Texas State Employees., Melinda Herrera
Fair Labor Standards Act And Sovereign Immunity: Unlocking The Courthouse Door For Texas State Employees., Melinda Herrera
St. Mary's Law Journal
Unless Texas expressly waives its Eleventh Amendment sovereign immunity, its state employees will not have similar legal recourse and protection as those available to private employees. As in many other states, a party may not sue the State of Texas without its consent. Thus, in the absence of constitutional or statutory provisions to the contrary, a state may claim sovereign immunity against any suit brought by a private party in both federal and state court. As a result, the Eleventh Amendment effectively precludes private individuals from suing a state in both federal and state court for violating a federal statute …
The Spanish Predominant Language Ordinance: Is Spanish On The Way In And English On The Way Out., Adriana Resendez
The Spanish Predominant Language Ordinance: Is Spanish On The Way In And English On The Way Out., Adriana Resendez
St. Mary's Law Journal
El Cenizo's Spanish language ordinance is likely to survive a constitutional challenge. The City Council of El Cenizo’s Spanish language ordinance, however, has generated a significant amount of controversy in the United States. The ordinance stipulates that all city council meetings will be made in the city’s predominant language—Spanish. Critics argue that the ordinance has made Spanish the official language. Critics also argue that the ordinance is discriminatory toward English speakers. English only advocacy groups, such as English First and U.S. English, argue that the ordinance will create a trend across the United States of immigrants refusing to embrace an …
Has The Fog Cleared - Attorney Work Product And The Attorney-Client Privilege: Texas's Complete Transition Into Full Protection Of Attorney Work In The Corporate Context., Fred A. Simpson
St. Mary's Law Journal
The following discussion in this Article fills the gaps in the substantive rules surrounding the attorney work product doctrine and the attorney-client privilege, thereby encouraging practitioners to utilize these tools more freely. Initially, the attorney-client privilege contemplated application only to individuals. As the rule developed in the United States, however, the scope of the privilege broadened until it included corporations. Since 1982, Texas has provided for the attorney-client privilege in Texas Rule of Civil Evidence 503.149. Notably, the Rule defined client in such a way as to include a corporation. Unlike the attorney-client privilege, the work product doctrine developed much …
Getting It Right From The Beginning: A Critical Examination Of Current Criminal Defense In Texas And Proposal For A Statewide Public Defender System., Rebecca Copeland
Getting It Right From The Beginning: A Critical Examination Of Current Criminal Defense In Texas And Proposal For A Statewide Public Defender System., Rebecca Copeland
St. Mary's Law Journal
Abstract Forthcoming.
Regulation Fd: Sec Reestablishes Enforcement Capabilities Over Selective Disclosure., John P. Jennings
Regulation Fd: Sec Reestablishes Enforcement Capabilities Over Selective Disclosure., John P. Jennings
St. Mary's Law Journal
This Recent Development focuses on the potential effects Regulation Fair Disclosure (FD) will have on the participants in the American capital market and on the stock markets themselves. Congress and the Securities Exchange Commission (SEC) seek to achieve confidence in the integrity and fairness of the American stock market and protection of investors from fraud by promoting equal opportunities for investors. In order to maintain a competitive edge, vis-à-vis its foreign counterparts, the United States must continually refine its financial systems to maximize fairness and integrity. This Recent Development focuses on selective disclosure—allowing a limited segment of investors access to …
Does Community Notification For Sex Offenders Violate The Eighth Amendment's Prohibition Against Cruel And Unusual Punishment - A Focus On Vigilantism Resulting From Megan's Law., Alex B. Eyssen
St. Mary's Law Journal
Community notification of a sex offender’s presence may be violating the Eighth Amendment’s protection from Cruel and Unusual Punishment. Under Megan’s Law and other sex offender registration statutes, individuals that have completed a prison sentence for a sex crime may have to register as a sex offender. The information of the individual including his name, address, physical description, date of birth, social security number, employer, offense, and picture, is publicly disseminated. As an unintended consequence, individuals who have served their time may have to suffer additional punishment in the form of harassment, vigilantism, and violence.
No Taxation Without Realization: Srivastava V. Commissioner, The Fifth Circuit's Answer To Tax Treatment Of Attorney's Fees Under A Contingency Fee Agreement., Bernard J. Grant Iii
No Taxation Without Realization: Srivastava V. Commissioner, The Fifth Circuit's Answer To Tax Treatment Of Attorney's Fees Under A Contingency Fee Agreement., Bernard J. Grant Iii
St. Mary's Law Journal
Abstract Forthcoming.
Vultures And Lambs: A Journey Through Protective Services For The Texas Elderly., Christopher J. Pettit
Vultures And Lambs: A Journey Through Protective Services For The Texas Elderly., Christopher J. Pettit
St. Mary's Law Journal
The Texas system leaves the elderly and disabled vulnerable to financial vultures. Despite guardianship and pre-planning processes meant to empower elderly and disabled Texans to choose who shall manage their affairs, the Texas system may give a financial vulture access to the elderly or disabled’s accounts. Texas agencies such as Adult Protective Services’ purpose is to stop the abuse of the elderly, however, the agency is sometimes used as a tool to circumvent the stated wishes of an elderly person. For example, a person seeking to exploit an elderly person may do so by simply filing charges with Adult Protective …
Reining In Property Owners' Associations' Power: Texas's Need For A Comprehensive Plan., Karen Ellert Pena
Reining In Property Owners' Associations' Power: Texas's Need For A Comprehensive Plan., Karen Ellert Pena
St. Mary's Law Journal
Abstract Forthcoming.
Parental Rights In The Twenty-First Century: Parents As Full Partners In Education., Linda L. Schlueter
Parental Rights In The Twenty-First Century: Parents As Full Partners In Education., Linda L. Schlueter
St. Mary's Law Journal
Abstract Forthcoming.
Those Dangerous Student Prayers., Kelly J. Coghlan
Those Dangerous Student Prayers., Kelly J. Coghlan
St. Mary's Law Journal
Abstract Forthcoming.
Does The Individuals With Disabilities Education Act Exclude Gifted And Talented Children With Emotional Disabilities - An Analysis Of J.D. V. Pawlet., Laura Ketterman
Does The Individuals With Disabilities Education Act Exclude Gifted And Talented Children With Emotional Disabilities - An Analysis Of J.D. V. Pawlet., Laura Ketterman
St. Mary's Law Journal
Disabled children benefit from federal legislation which guarantees a free, appropriate education. While no federal mandate requires providing special education for gifted and talented children, the government encourages schools to offer gifted and talented programs. Gifted and talented children with emotional disabilities, however, often fall between these two groups and do not qualify for special education under any legislation. Unfortunately, in many gifted and talented children with disabilities the gift hides the disability—or the disability hides the gift. To compound the problem, legislation and recent court decisions fail to recognize that gifted and talented children have unique needs which should …
Class Dismissed: The Conservative Class Action Revolution Of The Texas Supreme Court., Russell T. Brown
Class Dismissed: The Conservative Class Action Revolution Of The Texas Supreme Court., Russell T. Brown
St. Mary's Law Journal
Historically, Texas plaintiffs enjoyed tremendous flexibility in gaining certification for class action lawsuits because of a liberal approach employed by Texas trial courts. Because certification assignment occurred early in the judicial proceedings, Texas case law encouraged trial courts to grant certification of a class. Putative classes chose to seek relief in state court because of the state’s lax view regarding class actions, particularly when compared to federal courts. Concerns arose throughout Texas about the growing liberal methodology courts used to evaluate putative classes during certification. Federal influence, state lobbies, and legislative pressure led the Texas judiciary, through application of the …
Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman
Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman
St. Mary's Law Journal
This Essay addresses judicial interpretation and application of the religious protections of students in public schools. Part II addresses the evolution of the law governing prayer in public schools, including the creation of judicial tests utilized in determining whether a school district has impeded the rights of students in the area of religion. Part III examines the application of these tests to various activities, including a discussion of the disparity in judicial interpretation with respect to the permissibility of prayer at public school functions. This Essay concludes with a discussion analyzing the effect of the recent United States Supreme Court …
Bridging The Analytical Gap: The Gammill Alternative To Overcoming Robinson & (And) Havner Challenges To Expert Testimony., Kimberly S. Keller
Bridging The Analytical Gap: The Gammill Alternative To Overcoming Robinson & (And) Havner Challenges To Expert Testimony., Kimberly S. Keller
St. Mary's Law Journal
Abstract Forthcoming.