Jurisprudence Commons^™

Reinventing The Deal: A Sequential Approach To Analyzing Claims For Enforcement Of Modified Sales Contracts, Irma S. Russell

Faculty Works

This article explores the legal and economic complexities surrounding the enforcement of modified sales contracts under Section 2-209 of the Uniform Commercial Code (UCC). While contract modification allows parties to adapt agreements to changing circumstances, courts have struggled with the absence of a consistent standard for determining when such modifications should be enforced. The discussion critiques the ambiguity of the UCC’s “good faith” requirement and the unpredictability it creates in judicial decision-making. To address these issues, the article proposes a “sequential approach” that examines each stage of the modification process, requiring the initiating party to demonstrate reasonable grounds for seeking …

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

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

St. Mary's Law Journal

Abstract Forthcoming.

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.

Naturalized Epistemology And The Critique Of Evidence Theory, Dale A. Nance

Faculty Publications

In this article I give a mixed review Allen and Leiter’s naturalized epistemology theory of evidence. I applaud their focus on naturalized epistemology, but I question the claims that they argue follow from it. In some ways, my reaction is that they have not gone far enough in pressing its implications, and I attempt to suggest how further progress might be made along this path. On the whole, I conclude that the antipathy toward algrithms expressed by Allen and Leiter is misplaced.

Latcrit At Five: Institutionalizing A Postsubordination Future, Elizabeth M. Iglesias, Francisco Valdes

Articles

No abstract provided.

Just So Stories: Posnerian Methodology, Jeanne L. Schroeder

Cardozo Law Review

No abstract provided.

Accounting For Family Change, Katharine B. Silbaugh

Faculty Scholarship

The legal focal point of familial obligation in the United States has long been the relationship between paired adults-most centrally marriage. Obligations to children, and rights to their company, were derivative; they were to be met through the framework of the all-important pairing of adults. Over the past several decades, that core source of legal obligation has shifted from the adult relationship between partners to the relationship between parent and child. The shift has occurred at a number of different levels, and it has had a variety of consequences, the majority of which are still shaking out. The legal catalyst …

The Talmudic Rule Against Self-Incrimination And The American Exclusionary Rule: A Societal Prohibition Versus An Affirmative Individual Right, Suzanne Darrow-Kleinhaus

Scholarly Works

No abstract provided.

The Politics Of Judicial Reform In Japan: The Rule Of Law At Last?, Setsuo Miyazawa

Faculty Scholarship

The purpose of this paper is to discuss the most recent changes in Japan's political environment that could radically alter its judicial system and legal profession in the near future. Reform of the judicial system and legal profession has now been placed on the national agenda, and the cast of players involved has spread from the traditional groups of legal professionals (judges, prosecutors, and attorneys) to the major actors of the larger political process, namely the Liberal Democratic Party (Jiya Minshu T6) ("LDP"), the ruling conservative party, and the Federation of Economic Organizations (Keidanren), one of the most influential organizations …

The Muddy Boundaries Between Res Judicata And Full Faith And Credit, Stewart E. Sterk

Articles

The Full Faith and Credit Clause of the U.S. Constitution requires states to respect and recognize the legal decisions of other states, but its application is limited when it comes to judgments that attempt to control future behavior or infringe on a state's sovereignty. The article argues that while the clause ensures finality and uniformity, it does not obligate states to enforce sister-state injunctions or orders that dictate conduct beyond their borders. This distinction is particularly evident in cases involving family law, where states retain flexibility to modify or ignore prior judgments based on evolving circumstances, such as the best …

Meaning, Intention, And The Hearsay Rule., Paul F. Kirgis

Faculty Law Review Articles

In this Article, I draw on insights from the linguistic discipline of pragmatics to offer another way to understand and apply the definition of hearsay in the Federal Rules of Evidence. Pragmatics is concerned with how we use language in real-world contexts to accomplish various objectives.' By identifying the conventions that govern language usage, pragmatics provides ways to analyze what a speaker means when he says something and how meaning is conveyed through language.5 Pragmatics thus has obvious utility for the study of hearsay.

The philosopher Paul Grice looms over the field of pragmatics. His theory of conversational implicature revolutionized …

Introduction: The Difficult First Amendment, Christina E. Wells

Faculty Publications

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.

Taking Globalization Seriously: Towards General Jurisprudence (Book Review Of Globalization And Legal Theory By William Twining), Doron M. Kalir

Law Faculty Articles and Essays

Part II provides an account of the jurisprudence of Globalization and Legal Theory. Due to the novelty of many of the issues discussed in the book, as well as their importance to the understanding of Twining's recommendations, I have provided a longer than usual account of several chapters. Part II touches upon one of the central jurisprudential dichotomies introduced by Twining—the distinction between general and particular jurisprudence. Twining compares different accounts of the distinction using pairs of canonical jurists. In particular, he compares H.L.A Hart's Postscript with Dworkin's Law's Empire. In this part, I juxtapose Twining's record of this …

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

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 …

Rights, Rights Of Action, And Remedies: An Integrated Approach, Donald H. Zeigler

Washington Law Review

Traditionally, courts equated rights and remedies. Consequently, courts sought to provide remedies for the violation of statutory rights even if a statute did not contain detailed enforcement provisions. In the 1970s, however, the U.S. Supreme Court transformed what had been a unified inquiry into whether a statutory provision should bejudicially enforceable into three distinct questions and developed separate criteria for deciding whether a statute should be read to create a right, imply a right of action, or provide a remedy. Rights, rights of action, and remedies are inextricably related. The Court's attempt to separate these inseparable concepts has led to …

“God Told Me To Kill”: Religion Or Delusion?, Grant M. Morris, Ansar Haroun

San Diego Law Review

This Article explores how, in assessing the motivation of those who kill because they believe they were directed by God to do so, society distinguishes religious-based decisions from delusional decisions that result from mental disorder. Part II discusses how religion is defined in our society, and Part III considers the extent to which religious conduct, as opposed to religious belief, is protected from governmental intrusion.

Reining In Property Owners' Associations' Power: Texas's Need For A Comprehensive Plan., Karen Ellert Pena

St. Mary's Law Journal

Abstract Forthcoming.

The Doctrine Of Non-Inquiry And The Preservation Of Human Rights:-Is There Room For Reconciliation?, Michael S. Topiel

Cardozo Journal of International and Comparative Law

The note explores the tension between individual human rights under international law and state interests in combating cross-border crime, focusing on the doctrine of noninquiry in extradition cases. It argues that while the Convention Against Torture imposes obligations to prevent extradition to situations of torture, the doctrine of noninquiry—where courts avoid scrutinizing the requesting state’s justice system—remains crucial for maintaining separation of powers and diplomatic relations. The analysis highlights the balancing act between protecting human rights and ensuring international cooperation in law enforcement.

Getting Beyond Formalism In Constitutional Law: Constitutional Theory Matters, Erwin Chemerinsky

Oklahoma Law Review

No abstract provided.

Replies To Professor Chemerinsky, David W. Levy, Harry F. Tepker Jr., Arthur G. Lefrancois, Kevin W. Saunders, Michael A. Scaperlanda, Katheleen R. Guzman, Lindsay G. Robertson

Oklahoma Law Review

No abstract provided.

Further Thoughts, Erwin Chemerinsky

Oklahoma Law Review

No abstract provided.

Constitutional Formalism And The Meaning Of Apprendi V. New Jersey, Benjamin Priester

Journal Publications

In June 2000, the United States Supreme Court decided Apprendi v. New Jersey,' a case that likely will have a significant impact on the administration of criminal justice in federal and state courts. The Court imposed a procedural limitation on prosecutors by restricting the types of facts that may be proven at sentencing rather than at trial. Specifically, the Court adopted a constitutional principle that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" is an element of the offense of conviction. Under wellestablished constitutional doctrine, the Constitution's full procedural protections, especially the necessity of …

Terry Firma: Background Democracy And Constitutional Foundations, Frank I. Michelman

Michigan Law Review

Ages ago, I had the excellent luck to fall into a collaboration with Terrance Sandalow to produce a casebook now long forgotten. There could have been no more bracing or beneficial learning experience for a fledgling legal scholar (meaning me). What brought us together indeed was luck from my standpoint, but it was enterprise, too - the brokerage of an alert West Publishing Company editor picking up on a casual remark of mine as he made one of his regular sweeps through Harvard Law School. A novice law professor, I mentioned to him how much I admired a new essay …

Of Courts And Closets: A Doctrinal And Empirical Analysis Of Lesbian And Gay Identity In The Courts, Todd Brower

San Diego Law Review

The decision4 to acknowledge one's sexual orientation-to "come out'5 in common parlance-exposes gay people to a variety of responses from acceptance, to ridicule,6 to loss of contracts or other means to earn a living, to termination of employment or other benefits.8 Nevertheless, it is an essential step toward lesbian and gay persons' full and equal participation in American society. Legal rules can help or hinder this process; current doctrine, unfortunately, does both.

Sex Changes And “Opposite-Sex” Marriage: Applying The Full Faith And Credit Clause To Compel Interstate Recognition Of Transgendered Persons’ Amended Legal Sex For Marital Purposes

San Diego Law Review

This Comment argues that, in most cases, states are constitutionally bound to give full faith and credit to laws and judgments rendered in

sister states, including those that result in changes of the sex designated on birth certificates. The sex designated on the birth certificate controls gender identity for all legal purposes of the individual named therein. Therefore, unless a forum state demonstrates that allowing transsexuals and intersexuals to marry in their legal gender is contrary to an important state interest, that state must recognize “opposite-sex” marriages involving transsexuals and intersexuals.