Jurisprudence Commons^™

Constitutional Fictions And Meritocratic Success Stories, Robin West

Georgetown Law Faculty Publications and Other Works

L.H. LaRue demonstrates in his book, Constitutional Law as Fiction, that, at least in the realm of constitutional law, there is no simple correspondence between fiction and falsehood, or fact and truth. Partial or fictive accounts of our constitutional history, even when they are riddled with inaccuracies, may state deep truths about our world, and accurate recitations of historical events may be either intentionally or unintentionally misleading in the extreme. According to LaRue, the Supreme Court engages in a form of storytelling or myth-making that goes beyond the inevitably partial narratives of fact and precedent. The Supreme Court also tells …

An Epilogue To The Age Of Pound, Thomas A. Green

Articles

Doubts about the reality of criminal offenders' autonomy have sometimes played a role in the movement to abolish, or greatly reduce the reach of, the sanction of capital punishment.

A Neo-Institutional Paradigm For Contracts Formed In Cyberspace: Judgment Day For The Statute Of Frauds, Marc E. Szafran

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Duration Of Copyright And The Limits Of Cultural Policy, J. H. Reichman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Federal Evidentiary Hearings Under The New Habeas Corpus Statute, Larry Yackle

Faculty Scholarship

Constitutional claims invariably turn on the underlying historical facts. In order to adjudicate claims presented in habeas corpus petitions, accordingly, the federal courts must somehow ascertain the facts. In some instances, the factual record can be augmented via discovery or expansion of the record under the federal habeas corpus rules.' Otherwise, disputed factual issues typically must be determined on the basis of previous litigation in state court or in independent federal evidentiary hearings.

Gatekeeping In Texas: The Practical Impact Of Full Implementation Of The Texas Rules Of Civil Evidence Regarding Experts., Suzanne B. Baker

St. Mary's Law Journal

Abstract Forthcoming.

Free Trade Agreements And The Federal Courts: Emerging Issues., Robert P. Deyling

St. Mary's Law Journal

The United States and Canada, and more recently Mexico, have tried to resolve certain types of international trade disputes through a unique process. Under the United States-Canada Free Trade Agreement (CFTA) and its successor, the North American Free Trade Agreement (NAFTA), disputing parties may choose binational panels to review disputes over antidumping and countervailing duty determinations. Binational panel review entirely replaces national judicial review for each case in which the parties choose the panel process. Panels are convened on a case-by-case basis from a list of trade experts submitted by disputing countries. Panels must follow relevant national trade law in …

Adarand Constructors, Inc. V. Pena: The Lochnerization Of Affirmative Action Recent Development., Patricia A. Carlson

St. Mary's Law Journal

The Supreme Court’s decision in Adarand will lead to the invalidation of many federal programs because the decision requires strict scrutiny for all affirmative action programs, including federal programs. The Court ignores both constitutional strictures and American history by resorting to Lochner era rulings of striking down federal socio-economic regulations. Overturning the clear precedent of Fullilove undermines stare decisis by valuing the language of the Court’s decision over its meaning.   The Court in Adarand presumes that the Constitution is color-blind. This presumption ignores the history leading up to the Reconstruction Amendments, the purpose of the Reconstruction Amendments, and the intentions …

The Anatomy Of Emtala: A Litigator's Guide., Alicia K. Dowdy, Gail N. Friend, Jennifer L. Rangel

St. Mary's Law Journal

The Emergency Medical Treatment and Active Labor Act (EMTALA) prohibits hospitals from inappropriately transferring or refusing medical care to persons with emergency medical conditions. EMTALA was passed in response to the practice of “dumping” seriously ill patients from private hospitals into public ones, to ensure all patients receive medical treatment in emergency situations. Plaintiffs have attempted to pursue EMTALA claims against non-hospital defendants, but courts have consistently disallowed such claims under the statute. By limiting the scope of its coverage to hospitals, EMTALA creates a situation unique from ordinary medical malpractice. Although hospitals may be held liable for negligent credentialing …

A Fair Day's Pay For A Fair Day's Work: Time To Raise And Index The Minimum Wage., William P. Quigley

St. Mary's Law Journal

Millions of people are working for a living but not receiving a living wage in return for their work. The value of the minimum wage continues to erode, with the Congressional Research Service estimating the minimum wage would have to rise to $6.75 per hour in 1996 to equal the purchasing power it represented in 1978. It is not in the common interest, nor in the interest of justice, for people to work full-time, yet remain mired in poverty. Reforming the minimum wage by raising it and indexing it for inflation is a critical step toward attaining Franklin Delano Roosevelt’s …

Texas Private Real Property Rights Preservation Act: A Political Solution To The Regulatory Takings Problem Comment., George E. Grimes Jr.

St. Mary's Law Journal

Increasing environmental regulation has resulted in an antiregulation backlash and the growth of a property rights movement. Unable to successfully use the courts to protect private property from diminution in value due to government regulations, property rights advocates have looked to the federal and state legislatures for assistance. This has led to some states and the United States Congress to introduce private property rights protection. This protection generally takes one of two forms. The first requires the government to assess the possible effect on property rights before enacting regulations. The second requires the government to compensate property owners for the …

Principles Of Governmental Immunity In Texas: The Texas Government Waives Sovereign Immunity When It Contracts - Or Does It Comment., Renna Rhodes

St. Mary's Law Journal

When the government causes injury through negligence or by breaching a contract, the injured party must face the obstacle of governmental immunity. The doctrine of governmental immunity can act as a total bar to recovery, especially in Texas. Over the years, governmental immunity increasingly has faced attack from courts and commentators. Some states, including Texas, have revised the common-law doctrine, allowing the government to be sued in certain situations. In Texas, principles of governmental immunity are often misconstrued. Which principles of governmental immunity apply to a particular situation in Texas depends on whether the defendant is a state entity or …

Intellectual Property Pirates: Congress Raises The Stakes In The Modern Battle To Protect Copyrights And Safeguard The United States Economy Comment., Timothy D. Howell

St. Mary's Law Journal

Intellectual property pirates menace the industry by hijacking audio recordings, movies, television broadcasts, and software—posing an economic threat and accounting for billions of dollars in losses annually. This Comment examines legislative attempts to combat information piracy through criminalization of copyright infringement—focusing on the proposed Criminal Copyright Improvement Act of 1995 (Improvement Act). The Improvement Act contemplates expansion of criminal copyright infringement law, attempting to close the legal “loophole” exposed by United States v. LaMacchia, and providing a more effective means for deterring copyright piracy. Part II of this Comment provides a historical overview of United States copyright laws and introduces …

Nafta And The Environment: A Proposal For Free Trade In Hazardous Waste Between The United States And Mexico Symposium - The Environment And The United States-Mexico Border., David W. Eaton

St. Mary's Law Journal

Over the past decade, the transboundary movement of hazardous waste has become an important issue. Because of its geographic proximity to the United States and its desire to attract foreign investment, Mexico has become one of the United States-owned maquiladoras’ favorite dumping grounds. The recent North American Free Trade Agreement (NAFTA) may only exacerbate matters. Because the health and environmental risks associated with the inappropriate disposal of hazardous waste knows no boundaries, it is important NAFTA signatories jointly address waste issues. While NAFTA has had a positive impact on environmental protection in the United States and Mexico, the NAFTA debate …

Private Enforcement Of Nafta Environmental Standards Through Transnational Mass Tort Litigation: The Role Of United States Courts In The Age Of Free Trade Symposium - The Environment And The United States-Mexico Border - Comment., Michael Sang H. Cho

St. Mary's Law Journal

Maquiladoras are manufacturing facilities along the United States-Mexico border operated by transnational corporations (TNCs). The arrival of the North American Free Trade Agreement (NAFTA) meant TNCs are free to move capital and operations across the United States-Mexico border at will. Yet, the maquiladora workers are not free to travel or seek employment across the border. The NAFTA debate in the United States raised public awareness of environmental problems in the border region. Nevertheless, maquiladora workers have lived with environmental degradation long before the NAFTA environmental debate began. With the passage of NAFTA, increased trade and the burgeoning industries along the …

Third World Texas: Nafta, State Law, And Environmental Problems Facing Texas Colonias Symposium - The Environment And The United States-Mexico Border - Comment., David L. Hanna

St. Mary's Law Journal

The horrendous conditions along the Texas-Mexico border stem from factors on both sides of the Rio Grande River, including maquiladoras, migrant farms, poverty, poor land development, and bureaucracy. The adverse living conditions in Texas’s third world border region have resulted in immense health and safety problems. The United States government promised the North American Free Trade Agreement (NAFTA) would bring new environmental prosperity to the border region. Yet, aside from one sentence in the preamble, NAFTA does not directly address environmental protection. The United States and Mexico, as part of a series of environmental side agreements, created the Border Environmental …

Nafta And The Environment: Dealing With Abnormally High Birth Defect Rates Among Children Of Texas-Mexico Border Towns Symposium - The Environment And The United States-Mexico Border - Comment., Kelly L. Reblin

St. Mary's Law Journal

Along the 868-mile Texas-Mexico border thousands of young women live in fear as deadly birth defects with unknown causes threaten the lives of their unborn children. A total of ninety cases of the birth defect anencephaly, meaning the fetus has no brain, were reported in the fourteen Texas border counties between 1986 and 1991. The cause of these birth defects has yet to be determined officially; yet, researchers and residents along the Texas-Mexico border blame poor environmental conditions caused by the maquiladora industry and inadequate sewage facilities. The Texas Department of Health and the Centers for Disease Control investigated the …

Scientific Evidence Under Daubert., John H. Mansfield

St. Mary's Law Journal

The controversy over the proper standard for the admissibility of scientific evidence is an argument over the value of a jury trial compared with a bench trial or decisions by scientists. The argument has both a constitutional dimension in the provisions relating to a jury trial, compulsory process and due process, and a nonconstitutional dimension in the ordinary law of evidence. In the recent case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court took a different approach, basing its decision almost entirely on an interpretation of the particular words used in Rule 702 of the Federal …

Hopwood V. Texas: A Victory For Equality That Denies Reality - An Afterword Recent Development., Barbara Bader Aldave

St. Mary's Law Journal

Abstract Forthcoming.

Hopwood V. Texas: A Victory For Equality That Denies Reality Recent Development., Robert A. Lauer

St. Mary's Law Journal

Abstract Forthcoming.

Giving Texas Lawyers Their Dues: The State Bar's Liability Under Hudson And Keller For Political And Ideological Activities., Ralph H. Brock

St. Mary's Law Journal

The State Bar must provide information for members to assess the propriety of mandatory dues and establish a procedure for members to challenge improper expenditures, however, the Texas State Bar provides no such procedure. Although most states have unified bars, opposition to compulsory bar membership is steady—due largely, to using membership dues to lobby state legislatures in favor of positions which some members may oppose. Chicago Teachers Union v. Hudson and Keller v. State Bar of California are the culmination of labor union and unified bar cases which uphold compulsory membership but establish constitutional limits on the uses of mandatory …

Speaking The Language Of Exclusion: How Equal Protection And Fundamental Rights Analyses Permit Language Discrimination Comment., Donna F. Coltharp

St. Mary's Law Journal

In the summer of 1995, the en banc Texas Court of Criminal Appeals in Flores v. State upheld a lower court’s ruling to give a drunk-driving (DWI) offender a year in prison as opposed to probation. The trial judge denied the defendant probation due to his inability to speak English. The county in which the defendant was arrested and convicted did not provide a DWI rehabilitation program in Spanish, leading the judge to determine the defendant would not benefit from probation. In his appeal, Mr. Flores claimed the lower court violated his equal protection and due process rights under the …

Changing The Nature Of Corporate Representation: Attorney Liability For Aiding And Abetting The Breach Of Fiduciary Duty Comment., Stanley Pietrusiak Jr.

St. Mary's Law Journal

In 1983, the American Bar Association (ABA) comprehensively defined corporate counsel’s ethical duties in situations where a corporate officer engages in conduct which could substantially harm the organization. In such cases, the nature of the corporate attorney’s duties depends on whether the officer’s conduct is illegal or whether the officer made a policy decision which falls short of illegality. Rule 1.13 of the Model Rules of Professional Conduct imposes the duty on corporate counsel to take steps to stop corporate officers from engaging in illegal conduct which is likely to result in substantial injury to the organization. Conversely, counsel is …

Same-Sex Harassment - The Next Step Up In The Evolution Of Sexual Harassment Law Under Title Vii Comment., Regina L. Stone-Harris

St. Mary's Law Journal

Women sexually harassed by male co-workers are protected by Title VII of the Civil Rights Act. Yet, men are not protected because the federal courts in the Fifth Circuit do not protect men who are sexually harassed by other men. Male victims of sexual harassment are protected if they live in another district which does offer Title VII protection to same-sex victims. But should geography dictate protection? The federal courts are currently split as to whether a claim of sexual harassment between members of the same gender is actionable under Title VII of the Civil Rights Act. In the absence …

A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

A Text Is Just A Text, Paul F. Campos

Publications

No abstract provided.

This Could Be Your Culture--Junk Speech In A Time Of Decadence, Pierre Schlag

Publications

No abstract provided.

When Judges Are Gatekeepers: Democracy, Morality, Status, And Empathy In Duty Decisions (Help From Ordinary Citizens), Cheryl L. Wade

Faculty Publications

(Excerpt)

Imagine that you are eighteen and you have just graduated from high school. Even though you have no cognitive disability and have spent twelve years of your life attending public schools, you are functionally illiterate. If your predicament was caused by negligent educators, your action for educational malpractice would be called a "failure to educate" case and it would be denied.

Or, imagine that you enter a public school kindergarten class and you are examined by the school's psychologist. On the basis of a verbal intelligence test, the psychologist concludes that you are mentally retarded. In reality, you have …

The Executioner’S Face Is Always Well-Hidden: The Role Of Counsel And The Courts In Determining Who Dies, Michael L. Perlin

Articles & Chapters

No abstract provided.

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …