Jurisprudence Commons^™

In Re V.L.K. V. Troxel: Is The Best Interest Standard In A Motion To Modify The Sole Managing Conservator Subject To A Due Process Or Course Challenge., David F. Johnson

St. Mary's Law Journal

Texas Family Code section 156.101 is unconstitutional. In In re V.L.K, the Texas Supreme Court held that the Texas Legislature removed the injurious retention element from section 156.101 and no longer required a finding that the natural parent be injurious to the welfare of the child. The Texas Supreme Court’s ruling is contradictory to the United States Supreme Court’s ruling in Troxel v. Granville. In Troxel, the Supreme Court struck down a state statute that effectively permitted any third party to file a motion to challenge custody. Under Texas law, any affected party, not limited to parties named in the …

Telemedicine In Texas: Solving The Problems Of Licensure, Privacy, And Reimbursement., Gilbert Eric Deleon

St. Mary's Law Journal

Abstract Forthcoming.

Introduction To The Second Annual Symposium On Legal Malpractice & (And) Professional Responsibility The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Adam Boland

St. Mary's Law Journal

Abstract Forthcoming.

Absolute And Perfect Candor To Clients The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Vincent R. Johnson

St. Mary's Law Journal

The fiduciary duty owed to clients by attorneys is defined by the reasonable-care standard of negligence as opposed to the all-encompassing “absolute and perfect candor” rhetoric frequently used to describe the duty owed. Words have meanings and, though the use of “absolute and perfect candor” serves a beneficial purpose, reminding attorneys of the special duty owed to their clients, the fiduciary duty owed to clients is not so all encompassing and impractical. Modern case law fails to establish that a broadly applicable duty of “absolute and perfect” candor applies to the attorney-client relationship, except in a limited number of situations. …

The Legal Profession At The Crossroads: Who Will Write The Future Rules Governing The Conduct Of Lawyers Representing Public Corporations The Second Annual Symposium On Legal Malpractice & Professional Responsibility., David J. Beck

St. Mary's Law Journal

Abstract Forthcoming.

The Liability Of Lawyers For Fraud Under The Federal And State Securities Laws The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Kathy Patrick

St. Mary's Law Journal

Abstract Forthcoming.

The Cost Of Humanitarian Assistance: Ethical Rules And The First Amendment The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Jack P. Sahl

St. Mary's Law Journal

Abstract Forthcoming.

Tactical Considerations In Defending Assigned Legal Malpractice Claims Essay., William D. Cobb Jr.

St. Mary's Law Journal

Every Texas lawyer with a legal malpractice defense docket should be aware of the Zuniga rule and its possible exceptions. Although the general rule in Texas is that causes of action are freely assignable, because of the ruling in Zuniga v. Groce, Locke & Hebdon, legal malpractice causes of action are unassignable. The Texas Supreme Court declined to hear the case with the notation “writ refused” essentially adopting the lower court’s opinion as its own. Nonetheless, the decision in Zuniga did not resolve the problem of the insolvent judgment debtor, nor did Zuniga purport to invalidate all agreements that dispose …

Insurance Companies Use Of Captive Or In-House Counsel To Represent Insured Constitutes The Unauthorized Practice Of Law: Is American Home The Right Decision For Texas Comment., Daniel M. Martinez

St. Mary's Law Journal

Insurance companies should not be allowed to continue the practice of hiring in-house or captive counsel to defend against a claim covered by their insurance policy. Under a typical liability insurance policy, the insurer has a duty to defend. When legal counsel is retained, the insurer pays for the representation and has a contractual right to control the defense. This places defense counsel in a precarious situation because he or she has to balance the contractual obligations to the insurer against his or her ethical responsibilities to the insured. The defense counsel may be exposed to a malpractice claim by …

Jury Patriotism: The Jury System Should Be Improved For Texans Called To Serve., K. B. Battaglini, Mark A. Behrens, Cary Silverman

St. Mary's Law Journal

Many citizens seem to embrace the jury system, so long as they do not have to participate. The reason for this is not that most citizens are “un-American” but rather the burden jury duty imposes on potential jurors. Texans, in general, continue to overwhelmingly support the jury system. Yet, many citizens fail to appear for jury duty when summoned or strive to get out of jury duty after entering the courthouse. Most of these individuals do not lack a sense of civic duty. Rather, they are discouraged from jury service due to the hardship and headache imposed by an antiquated …

Punitive Damages In Texas: Examining The Need For A Split-Recovery Statute., Meredith Matheson Thoms

St. Mary's Law Journal

As a result of the increasing number and amounts of punitive damage awards, a call for reform is much warranted. Reformers and legislators continue to seek out measures to effectively limit excessive punitive damage awards and deter unnecessary and frivolous litigation. But they must consider not only the effects of the statutes but also the purposes they will serve. Split-recovery statutes can become valuable reform tool which will continue to serve the goals of punishment and retribution attached to punitive damages as well as deterrence. Split-recovery statutes arguably enlarge government, but they also serve a valuable purpose in furthering the …

Which Wave Are You? Comments On The Collected Essays From The Seminar "To Do Feminist Legal Theory", Deborah W. Post

Cardozo Journal of Equal Rights & Social Justice

The article discusses the challenges and opportunities in teaching feminist legal theory to law students, particularly those who may be entering formal education later in life. It highlights the importance of engaging students through innovative teaching methods and fostering critical thinking skills. The author reflects on their own teaching strategies, including the use of Socratic methods and the integration of feminist sensibilities, while acknowledging the risks and criticisms associated with these approaches. The central argument emphasizes the need for a restorative and redistributive vision of justice in legal education.

Cassiopeia, Anthony Paul Farley

Cardozo Journal of Equal Rights & Social Justice

The article argues that sexism functions as an orientation, akin to racism, shaping how individuals navigate societal and legal structures. It posits that the legal system is inherently hierarchical, perpetuating a "man-over-woman" dynamic that is deeply ingrained in juridical space. The author advocates for feminist legal theory as a means to reorient oneself within these structures, emphasizing the need to challenge and transform the systemic hierarchies that perpetuate inequality. The essayists in the symposium exemplify this reorientation by navigating toward alternative constellations of thought, symbolized by Cassiopeia, to create more equitable forms of human association.

The Effect Of The Supreme Court's Eleventh Amendment Jurisprudence On Environmental Citizen Suits: Gotcha!, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The current Supreme Court has substantially expanded the scope of protection from lawsuits accorded to states by the Eleventh Amendment and narrowed the exceptions to its application. As a result, many people are finding they are unable to vindicate federal rights in any court when the defendant is a state or a state agency. The most recent example of this is the Court's decision in South Carolina State Ports Authority v. Federal Maritime Commission, in which the Court extended the reach of the Eleventh Amendment to private administrative enforcement actions against states, thus forsaking completely any connection to the …

On Canonical Transformations And The Coherence Of Dichotomies: Jazz, Jurisprudence, And The University Mission, Barbara K. Bucholtz

University of Richmond Law Review

No abstract provided.

Iolta In The Balance: The Battle Of Legality And Morality Between Robin Hood And The Miser Recent Development., Katherine L. Smith

St. Mary's Law Journal

Interest on Lawyers Trust Account (IOLTA) programs recently survived a constitutional challenge. IOLTA programs require interest earned from trust accounts deposited with client money to fund legal services for the poor. Many states, including Texas, maintain a mandatory IOLTA program, requiring all lawyers who handle client funds to participate. Proponents of IOLTA argue it benefits civil justice. Opponents argue it is an unconstitutional taking in violation of the Fifth Amendment. The Fifth Circuit held IOLTA accounts to be an unconstitutional taking of client property. The Ninth Circuit, however, found IOLTA accounts constitutional, holding that IOLTA accounts are not a taking …

Accountants' Accountability To Nonclients In Texas., Jessica P. Gomez

St. Mary's Law Journal

This Comment proposes that accountants be held liable to any foreseeable user of their work product to ensure the deterrence of negligence on their part. Currently, the three main common law theories concerning whether nonclients can sue accountants for negligence are: (1) the privity rule; (2) the Restatement (Second) of Torts § 552; and (3) the foreseeability standard. Many states follow the Restatement approach entitled “Information Negligently Supplied for the Guidance of Others.” Texas imposes liability on accountants but fails to extend protections to third parties who rely upon the accuracy of financial statements. Further, Texas liability does not expose …

Hercules, Omniscience, Omnipotence, And The Right Answer Thesis, Michael B. W. Sinclair

NYLS Law Review

No abstract provided.

Continuity And Change In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

From the Introduction

In 1994, Richard Friedman made a very useful contribution to the growing body of scholarship on the development of constitutional doctrine during the New Deal era. Though I differed with Friedman on some points of interpretation, I nevertheless found much in the article to admire. Now, eight years later, Friedman has presented us with a more extended discussion of a particular aspect of that constitutional development, namely, the transformation of Commerce Clause doctrine. Here again I see points of agreement. We agree that it is unlikely that the Court Packing Plan played much of a role in …

Contraception As A Mask Of Personhood, Charles E. Rice

Journal Articles

Sometimes you can learn something by teaching Torts. In my case it happened with the Palsgraf case and John Noonan did it. When we reached Palsgraf, I always discussed with the class Professor Noonan's analysis in Persons and Masks of the Law.

Mrs. Palsgraf lost as a matter of law in the Court of Appeals, and Chief Judge Cardozo wrote the opinion. Professor Noonan thinks she lost because her humanity was covered by the abstract persona, the mask, of an "unforeseeable plaintiff." He did not accuse Cardozo of misapplying the rule of law he used, but of myopia in selecting …

A Future Foretold: Neo-Aristotelian Praise Of Postmodern Legal Theory, Francis J. Mootz Iii

McGeorge School of Law Scholarly Articles

No abstract provided.

A Jurisprudence Of Dangerousness, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This article addresses the state's police power authority to deprive people of liberty based on predictions of antisocial behavior. Most conspicuously exercised against so-called "sexual predators," this authority purportedly justifies a wide array of other state interventions as well, ranging from police stops to executions. Yet there still is no general theory of preventive detention. This article is a preliminary effort in that regard. The article first surveys the various objections to preventive detention: the unreliability objection; the punishment-in-disguise objection; the legality objection; and the dehumanization objection. None of these objections justifies a complete prohibition on the state's power to …

Western Justice, Richard B. Collins

Publications

No abstract provided.

The Unruliness Of Rules, Peter A. Alces

Faculty Publications

No abstract provided.

The Right To A Jury Decision On Questions Of Fact Under The Seventh Amendment, Paul F. Kirgis

Faculty Law Review Articles

In a series of decisions over the last decade, the Supreme Court has reconsidered an aspect of the Seventh Amendment that has been long overlooked: the allocation of particular questions to the judge or the jury in a case where the right to a jury trial applies. Breaking with historical practice, the Court has emphasized considerations other than the fact-law distinction as a basis for identifying the questions that must go to the jury. Most prominently, in Markman v. Westview Instruments, Inc., the Court focused on 'functional considerations" in assigning a question of patent claim construction to the judge. In …

Alarmism Versus Moderation In Responding To The Rehnquist Court, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

I begin in Part I by offering a description of the Supreme Court's recent decisions as a less substantial repudiation of prior principles than many think them to be, and as leaving Congress with the means to achieve a quite substantial proportion of the policy goals it pursued in the statutes the Court invalidated. Part II explains why Congress is unlikely to do so, in light of our apparent commitment to divided government, and parties that are organized around distinctive ideologies because of divided government. Part III turns to the prospect for continued policy transformation, identifying the conditions under which …

Where Are We When We Are Beyond Good And Evil?, Tracy B. Strong

Cardozo Law Review

No abstract provided.

Nietzsche Between Jews And Jurists: A Note On The Christian Filiation Of The Anti-Christ, Anton Schütz

Cardozo Law Review

No abstract provided.

Nietzsche And Aretaic Legal Theory, Kyron Huigens

Cardozo Law Review

No abstract provided.

Gay Science As Law: An Outline For A Nietzschean Jurisprudence, Jonathan Yovel

Cardozo Law Review

The main question examined in this study is not merely how a Nietzschean critique of law would look had Nietzsche ever applied his genealogical method to the question of law, but also what positive function Nietzschean philosophy may ascribe to law - and how law must then be transformed. The methodological parable imagines a "post-genealogy" or "post-ressentiment" phase of the human condition, akin to the Marxist "post-revolutionary" phase: How would law look for the person of power - overman or otherwise - who needs to live among others? How is normativity possible - what are its forms and …