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2002

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Articles 151 - 180 of 201

Full-Text Articles in Jurisprudence

Browning Oil Co. V. Luecke: Has Texas Illuminated A Dark Distinction Between Vertical And Horizontal Drilling., Stephen Taylor Dennis Jan 2002

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 …

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The Value Of Rational Nature, Donald H. Regan Jan 2002

The Value Of Rational Nature, Donald H. Regan

Articles

Kant tells us in the Groundwork of the Metaphysics of Morals that rational nature is an end in itself; that it is the only thing which is unconditionally valuable; and that it is the ultimate condition of all value.1 A striking trend in recent Kant scholarship is to regard these value claims, rather than the formalism of universalizability, as the ultimate foundation of Kant’s theory.2 But does rational nature as Kant conceives it deserve such veneration? Can it really carry the world of value on its shoulders? I think not. As will become clear, I do not doubt the value …

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Owen Fiss, Equality Theory, And Judicial Role, Susan P. Sturm Jan 2002

Owen Fiss, Equality Theory, And Judicial Role, Susan P. Sturm

Faculty Scholarship

This essay uses Owen Fiss’ treatment of equality doctrine in “Groups and the Equal Protection Clause” to demonstrate the influence of judicial role conceptions on equality jurisprudence. Fiss’ conception of the judiciary’s role in elaborating and enforcing public norms profoundly shapes his articulation of the anti-subordination principle. More specifically, Fiss looks to the federal judiciary unilaterally to declare public law truths and to impose those truths on noncompliant bureaucrats. This static, almost imperial role places great pressure on the judiciary to adopt unitary equality norms that can be implemented, at least in theory, through top-down imposition. Fiss’ commitment to a …

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Is The Republic Circling The Drain?, W. Taylor Reveley Iii Jan 2002

Is The Republic Circling The Drain?, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.

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The Courts' Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, 36 J. Marshall L. Rev. 181 (2002), David L. Hudson Jan 2002

The Courts' Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, 36 J. Marshall L. Rev. 181 (2002), David L. Hudson

UIC Law Review

No abstract provided.

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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 Jan 2002

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 …

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Lincoln, Marshall And The Judicial Role, David F. Forte Jan 2002

Lincoln, Marshall And The Judicial Role, David F. Forte

Law Faculty Articles and Essays

Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice Marshall …

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The Role Of Comparative Law In Statutory And Constitutional Interpretation, Jens C. Dammann Jan 2002

The Role Of Comparative Law In Statutory And Constitutional Interpretation, Jens C. Dammann

St. Thomas Law Review

This article argues that comparative law can legitimately be used as a standard tool in the context of legal interpretation. Part I establishes a terminological framework for the analysis undertaken in this article. Part II examines existing attempts at justifying the use of comparative arguments in legal interpretation. It is shown that the approaches in question can only legitimize the use of comparative law in specific circumstances but fail to provide a general basis for the use of comparative reasoning. Part HI identifies possible objections to the legitimacy of comparative justification. To do so, it analyzes both the relevant literature …

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The Decision In United States V. Brown: The Fifth Circuit Interprets Justice Is Blind Literally., Robert M. Anselmo Jan 2002

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 …

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Virtually A Minor: Resolving The Potential Loophole In The Texas Child Pornography Statute., Bill W. Sanford Jan 2002

Virtually A Minor: Resolving The Potential Loophole In The Texas Child Pornography Statute., Bill W. Sanford

St. Mary's Law Journal

Abstract Forthcoming.

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Summary Of Recent Developments In Texas Legal Malpractice Law Symposium: Legal Malpractice And Professional Responsibility., Steve Mcconnico, Robyn Bigelow Jan 2002

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 …

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Toward A More Effective Standard Of Review: The Potential Effect Of Burdine V. Johnson On Legal Malpractice In Texas., Rebecca A. Copeland Jan 2002

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 …

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Attorney-Client Conundrum: The Use Of Arbitration Agreements For Legal Malpractice In Texas., Robert J. Kraemer Jan 2002

Attorney-Client Conundrum: The Use Of Arbitration Agreements For Legal Malpractice In Texas., Robert J. Kraemer

St. Mary's Law Journal

Abstract Forthcoming.

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Twenty Years Of Labour Law And The Charter, Dianne Pothier Jan 2002

Twenty Years Of Labour Law And The Charter, Dianne Pothier

Dianne Pothier Collection

This article critically reviews the Charter jurisprudence of the Supreme Court of Canada relating to labour law. The rejection of the right to strike and to bargain collectively as part of freedom of association reflect substantial judicial deference to legislative policy choices. Recently, however, a constitutional right of unfair labour protection for particularly vulnerable workers shows some judicial willingness to intervene. While freedom of expression provides significant scope to union supporters, picketing and leafleting are still subject to wide restraint, the exact parameters of which remain unclear. The Charter has had only a modest effect on labour law. Even successful …

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Treaties And The Eleventh Amendment, Carlos Manuel Vázquez Jan 2002

Treaties And The Eleventh Amendment, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …

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"How To Think About Equality." Review Of Sovereign Virtue: The Theory And Practice Of Equality, By R. Dworkin, Don Herzog Jan 2002

"How To Think About Equality." Review Of Sovereign Virtue: The Theory And Practice Of Equality, By R. Dworkin, Don Herzog

Reviews

Ronald Dworkin's' latest might well seem sharply discontinuous with his other work. The formal theoretical apparatus that kicks off the book is a forbiddingly abstract - some will say arcane - hypothetical auction, coupled with a hypothetical insurance market. There is simply nothing like it in Taking Rights Seriously, or A Matter of Principle, or Law's Empire, or Life's Dominion, or Freedom's Law. Then again, Dworkin first published the key papers on the auction some twenty years. ago and has never flagged, as far as I know, in his commitment to the basic project.2 Theorists have been waiting for the …

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Sua Sponte Appellate Rulings: When Courts Deprive Litigants Of An Opportunity To Be Heard, Barry A. Miller Jan 2002

Sua Sponte Appellate Rulings: When Courts Deprive Litigants Of An Opportunity To Be Heard, Barry A. Miller

San Diego Law Review

But the Supreme Court and other appellate courts have failed to follow any consistent practice about sua sponte holdings. The difficulty courts have is illustrated by the fact that even the most prominent appellate judges sometimes say they want procedural regularity, but in other cases exercise the freedom to do what they like.

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African Courts, International Law, And Comparative Case Law: Chimera Or Emerging Human Rights Jurisprudence?, Mirna E. Adjami Jan 2002

African Courts, International Law, And Comparative Case Law: Chimera Or Emerging Human Rights Jurisprudence?, Mirna E. Adjami

Michigan Journal of International Law

Though the potential creation of a supranational human rights court has brought international attention to the African human rights system, international law and human rights scholars rarely turn to African examples when studying the domestic application of international human rights norms. This Article seeks to fill that gap by analyzing cases from several Anglophone common law countries in sub-Saharan Africa that invoke international law and comparative case law as interpretive support in their national fundamental rights jurisprudence.

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Appeals From Pleas Of Guilty And Nolo Contendere: History And Procedural Considerations., Kevin Yeary Jan 2002

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 …

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An Essay On The Tort Of Negligent Infliction Of Emotion Distress In Texas: Stop Saying It Does Not Exist., Charles E. Cantu Jan 2002

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 …

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Ethics: Lawyering And Professionalism., Broadus A. Spivey Jan 2002

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. …

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Shoot Out At The Not-O.K. Corral Or Privileged Client Communications - Lost And Found In Texas., Walter W. Steele Jr. Jan 2002

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 …

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Proposed Conflict Of Interest And Confidentiality Rules., Luther H. Soules Iii Jan 2002

Proposed Conflict Of Interest And Confidentiality Rules., Luther H. Soules Iii

St. Mary's Law Journal

The Texas Supreme Court and the State Bar of Texas should fully adopt the proposals to the Rules of Professional Conduct 1.05–1.13 addressing attorney confidentiality and conflicts of interest. Historically, the Rules of Professional Conduct have set a floor which a lawyer may be subject to discipline, the Rules, however, do not offer bright lines for deciding questions of law, ethics, or fairness. Because the rules of professional responsibility in the legal industry are ambiguous in nature and often encumber a lawyer’s ability to effectively represent clients, the Texas Disciplinary Rules Committee recommends modification to the Rules of Professional Conduct …

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Judicial Personality: Rhetoric And Emotion In Supreme Court Opinions, Laura Krugman Ray Jan 2002

Judicial Personality: Rhetoric And Emotion In Supreme Court Opinions, Laura Krugman Ray

Washington and Lee Law Review

No abstract provided.

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Pragmatism Regained, Christopher Kutz Jan 2002

Pragmatism Regained, Christopher Kutz

Michigan Law Review

Jules Coleman's The Practice of Principle serves as a focal point for current, newly intensified debates in legal theory, and provides some of the deepest, most sustained reflections on methodology that legal theory has seen. Coleman is one of the leading legal philosophers in the Anglo-American world, and his writings on tort theory, contract theory, the normative foundations of law and economics, social choice theory, and analytical jurisprudence have been the point of departure for much of the most interesting activity in the field for the last three decades. Indeed, the origin of this book lies in Oxford University's invitation …

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Horrible Holmes, Mathias Reimann Jan 2002

Horrible Holmes, Mathias Reimann

Michigan Law Review

Holmes has kept scholars busy for most of a century, and the resulting volume of literature about him is staggering. In that last twenty years along, we have been blessed with four biographies, four symposia, three new collections of his works, two volumes of essays, and various monographs, not to mention a multitude of free-standing law review articles. Since life is short, everyone who adds to the deluge, including Albert Alschuler with his new book, bears a heavy responsibility to make the expenditure of trees, library space, and reading time worthwhile. Does Law Without Values fulfill that responsibility? Despite the …

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The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner Jan 2002

The Movement Toward Federalism In Italy: A Policy-Oriented Perspective, Siegfried Wiessner

Faculty Articles

No abstract provided.

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Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld Jan 2002

Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld

Articles

The article advocates for the establishment of "innocence commissions" to investigate and address wrongful convictions in the U.S. criminal justice system. Drawing parallels to the National Transportation Safety Board (NTSB), which investigates transportation accidents, the authors propose that these commissions would identify systemic defects leading to wrongful convictions and recommend reforms to prevent future miscarriages of justice. They emphasize the need for independence, subpoena power, and public accountability to ensure the commissions' effectiveness.

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Economic Rationality, Empathy, And Corporate Responsibility, Jeanne L. Schroeder Jan 2002

Economic Rationality, Empathy, And Corporate Responsibility, Jeanne L. Schroeder

Articles

Judge Richard A. Posner - the doyen of the law and economics movement - is probably the leading proponent of the hypothesis that legal subjects act as if they were economically rational. Over the years, however, Posner's conception of rationality has devolved from end-means reasoning by a conscious individual human actor, to unconscious instinct which is, nevertheless, beneficial to an individual subject (animal or human) to the mechanistic reproductive activity of individual genes which may or may not be beneficial to either the organism of which the gene is a part - or even to the gene itself. Indeed, all …

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Standards Of Review In Texas., W. Wendell Hall Jan 2002

Standards Of Review In Texas., W. Wendell Hall

St. Mary's Law Journal

Abstract Forthcoming.

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