Jurisprudence Commons^™

Advocacy As History? That Takes The Prize! Gulag: A History [Book Review], Dana Neacsu

Law Faculty Publications

Gulag: A History, the recipient of the 2004 Pulitzer Prize for general non-fiction, may be particularly well received by lawyers and law students because they can appreciate author Anne Applebaum's writing skills. Gulag reads like a lawyer's product: a conclusion replete with facts and arguments. Those who enjoy perfecting their legal skills while reading for pleasure should read this review. Gulag is, in essence, a successful legal brief.

Tools, Not Rules: The Heuristic Nature Of Statutory Interpretation, Morell E. Mullins Sr.

Law Faculty Scholarship

No abstract provided.

The Allocation Of Profits Between Related Entities And The Oppression Remedy: An Analysis Of Ford Motor Co. V. Omers, Kim Brooks, Anita Anand

Articles, Book Chapters, & Popular Press

In Ford Motor Co. v. Ontario Municipal Employees Retirement Board, the Ontario Superior Court of Justice reviewed the transfer pricing arrangements between parent and subsidiaries Ford US and Ford Canada in the context of a going-private transaction. Its review was the key to resolving the two main issues in the case: first, did the transfer-pricing arrangements understate Ford Canada's profits so as to undermine the fair value of Ford Canada's shares? And second, did the transfer-pricing arrangement oppress or unduly disregard the interests of Ford Canada's minority shareholders so as to give rise to the oppression remedy?

In this comment, …

Governance And Anarchy In The S.2(B) Jurisprudence: A Comment On Vancouver Sun And Harper V. Canada, Jamie Cameron

Articles & Book Chapters

The article identifies and explains a double standard in the Supreme Court of Canada jurisprudence. The contrast is between the open court jurisprudence, which is a model of good constitutional governance – or principled decision making – and the Court’s s.2(b) methodology, which is “anarchistic” or capricious and undisciplined, in the sense of this article. Two landmark cases decided in 2004 illustrate the double standard: the first is Re Vancouver Sun, [2004] 2 S.C.R. 332, which dealt with the open court principle under Parliament’s anti-terrorism provision for investigative hearings, it represents a high water mark for open court and s.2(b) …

Philosophy Of Contract Law, Jody S. Kraus

Faculty Scholarship

This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …

Hines 57: The Catchall Case To The Texas Kidnapping Statute., Karen Bartlett

St. Mary's Law Journal

This Recent Development asserts that the Texas Court of Criminal Appeals’ refusal to define “substantial interference” in relation to the kidnapping statute, opens the floodgates for every act of confinement or movement committed in the course of a substantive offense constituting kidnapping. The Court maintains it is up to the jury to define the term. If the Texas Legislature does not narrowly define the kidnapping statute, virtually every assault, robbery, sexual assault, and some murders will constitute both the substantive offense plus kidnapping. Furthermore, such logic would in effect bootstrap murder into capital murder, which happened in Herrin v. State. …

For Any Reason Or No Reason At All: Reconciling Employment-At-Will With The Rights Of Texas Workers After Mission Petroleum Carriers Inc. V. Solomon., Jason P. Lemons

St. Mary's Law Journal

Since its inception, Texas has been a favored destination for both up-start entrepreneurs and established corporations. One of the less heralded, but nonetheless significant factors that makes Texas so attractive to businesses is its long-standing devotion to the doctrine of at-will employment. The doctrine generally states that any employment relationship not governed by contract or a statutory provision is terminable at any time by either the employer or the employee for any reason or no reason at all. At-will employment has been praised by courts and commentators for the flexibility it offers both parties in decision making. Nevertheless, the at-will …

Hipaa Implications For Attorney-Client Privilege Third Annual Symposium On Legal Malpractice & (And) Professional Responsibility., Alex L. Bednar

St. Mary's Law Journal

Abstract Forthcoming.

What Attorneys Should Know: A Comprehensive Analysis Of Proposed Rule 8a Third Annual Symposium On Legal Malpractice & Professional Responsibility: Recent Development., Kellie E. Billings

St. Mary's Law Journal

Abstract Forthcoming.

On International And Interdisciplinary Legal Ethics Scholarship, W. Bradley Wendel

Cornell Law Faculty Publications

"Legal Ethics is an international and interdisciplinary journal dedicated to the field of legal ethics." The mission statement of this journal poses three concise challenges for scholars in this discipline: To define the domain of legal ethics, to study it from a perspective that is valid across jurisdictional boundaries, and to incorporate the insights of related disciplines. As befits an emerging and exciting field, lawyers and university faculty throughout the English- speaking common-law world have begun to engage with all three of these problems. The book reviews section of Legal Ethics has highlighted the publication of many of the …

Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman

Law Faculty Scholarly Articles

Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …

Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley

Faculty Scholarship

This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers …

Aboilishing The Texas Jury Shuffle., Michael M. Gallgher

St. Mary's Law Journal

This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …

School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii

St. Mary's Law Journal

The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …

Predatory Paternity Establishment: A Critical Analysis Of The Acknowledgment Of Paternity Process In Texas., Anne Greenwood

St. Mary's Law Journal

Child support programs across the nation are struggling to achieve even meager recovery of the financial support children need from their parents. Obtaining child support payments from men who are not fathers and who unknowingly signed their rights away is not a sound long-term policy. States must ensure that children are supported and their custodial mothers receive assistance from non-custodial fathers. Logically, the law should only compel a man to support a child he fathered. If a man chooses to assume not only the financial obligation but also the relationship which belongs to the biological father; then such agreement must …

Stranded In The Wastelands Of Unregulated Roadway Police Powers: Can Reasonable Officers Ever Rescue Us., Keith S. Hampton

St. Mary's Law Journal

This Article describes the present state of roadway police power and explores the vulnerability of drivers and occupants to police abuse, specifically using pretextual stops. Today, state and federal courts have made many police power accommodations to the constitutional reasonableness requirement. Current Fourth Amendment jurisprudence justifies almost all conceivable police seizures of people in vehicles. If the police officer can point out any traffic law violation, he can arrest. And if he can arrest under those circumstances, then the already blurred line between detentions and arrest becomes inconsequential, constitutionally speaking. This Article proposes that the Texas Court of Criminal Appeals …

United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders

St. Mary's Law Journal

Over the years Congress has enacted and amended several versions of the United States Code (U.S.C) § 925(c). Several reported cases illustrate the courts’ early efforts to develop a coherent body of jurisprudence with respect to the procedural and substantive aspects of U.S.C. § 925(c) judicial review. Specifically, the § 925(c) denials of relief by the Director before the congressional appropriations ban commenced in 1993. Although the methodology and reasoning behind these decisions differ in their details, several themes are discernable. First, even without the express provisions for judicial review added by the Firearms Owners Protection Act (FOPA), courts consistently …

Decriminalizing Sexual Conduct: The Supreme Court Ruling In Lawrence V. Texas., Jessica A. Gonzalez

St. Mary's Law Journal

Throughout America, homosexual men and women have fought for the protection of their constitutional rights; gay men, lesbian women, and bisexual persons have petitioned the government for marital rights, adoption privileges, and recognition in the armed forces. While American culture has changed to include homosexuals in its daily life, the judicial branch has been hesitant in accepting gay culture within the legal system. While American courts remained reluctant to invalidate anti-sodomy statutes, Lawrence v. Texas pushed homosexual issues to the forefront. Gay activists demanded that the courts recognize homosexual individuals as persons deserving of constitutional protections. In doing so, Lawrence …

Punishment Evidence: Grunsfeld Ten Years Later., Edward L. Wilkinson

St. Mary's Law Journal

This Article deals with the admissible evidence during the punishment phase of a non-capital trial in Texas. In 1989, the Texas Legislature amended Article 37.07, Section 3(a) of the Texas Code of Criminal Procedure to widen the scope of evidence admissible during the punishment phase of a non-capital trial. Grunsfel v. State, the leading case, the Court of Criminal Appeals interpreted the statute so narrowly as to render the changes meaningless. In 1993, the legislature amended the statute a second time; it provided for a more expansive range of evidence to be introduced, but deleted a critical definition of what …

The Seat Belt Defense In Texas., Brian T. Bagley

St. Mary's Law Journal

This Comment calls upon Texas courts to recognize the seat belt defense as a form of comparative responsibility. It has become standard procedure for Americans riding in motor vehicles to “buckle up.” Seat belt usage has risen since 1994, steadily increasing to seventy-five percent in 2002, with an increase of two percent in the last year alone. Many American jurisdictions, however, still refuse to allow evidence of seat belt use or nonuse to be considered in civil suits. Courts do not allow the failure to wear a safety belt in violation of the mandatory seat belt usage statute to be …

Legal Malpractice: When The Legal System Turns On The Lawyer Third Annual Symposium On Legal Malpractice & Professional Responsibility: Essay., Jennifer Knauth

St. Mary's Law Journal

What happens when a lawyer becomes a defendant in a legal malpractice case? Much has been written about the shortcomings of the adversary system as measured against its theoretical goals and assumptions. One significant assumption underlying the adversary system is that there is an equal playing field among litigants. The reality of a legal malpractice case is at odds with this ideal. The prevailing cultural bias against lawyers as gatekeepers and beneficiaries of the legal system permeates every aspect of a legal malpractice case. One effect of this cultural bias is the lawyer-defendant's very personal and disproportionate experience with the …

Ethical Issues In Judicial Campaigns Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Micahel E. Keasler

St. Mary's Law Journal

Abstract Forthcoming.

Confidentiality, Corporate Counsel, And Competition Law: Representing Multi-National Corporations In The European Union Third Annual Symposium On Legal Malpractice & Professional Responsibility: Symposium Presentations., Sue Bentch

St. Mary's Law Journal

Professional ethics for corporate counsel in the European Union (EU) differs from the standards required in the United States. Consequently, conflicts may arise when US corporations deal with EU countries. For instance, if an issue regarding confidentiality emerges, the company bears the burden to prove to the European Commission that a particular document is protected from disclosure. Under EU’s Regulation 17, the European Commissioner has broad powers to investigate and adjudicate suspected violations of EU competition law. The Commissioner is the equivalent of an investigator, prosecutor, judge, and jury, all rolled into one. If a communication from a company was …

Playing The Probate Card: A Plaintiff's Guide To Transfer To Statutory Probate Court., Joseph R. Marrs

St. Mary's Law Journal

Plaintiffs and defendants in tort litigation by or against a probate estate can be better-litigated in statutory probate court. Since the 1970s, Texas probate courts have steadily risen to power. The Texas Supreme Court attempted to curtail this practice in Seay v. Hall. The Texas legislature overruled Seay and continued to expanded the jurisdiction of statutory probate courts. Despite the continuing “merry dance” between the legislation and judicial review, the legitimate purpose of expanding lawsuits to probate court remains that of efficiently resolving lawsuits linked to guardianship or decedents’ estates while preserving all parties’ interests. The author uses an example …

Civillity In The Legal Profession: A Survey Of The Texas Judiciary., Catherine M. Stone, Kimberlyl S. Keller, Shane J. Stolarczyk

St. Mary's Law Journal

Abstract Forthcoming.

Loose Not The Floodgates, Benjamin J. Cooper

Cardozo Journal of Equal Rights & Social Justice

The article examines the implications of the Supreme Court's decision in Lawrence v. Texas, which struck down sodomy laws, arguing that while the ruling was necessary, it raises concerns about the broader regulation of sexual conduct outside marriage. The author contends that such laws, despite rare enforcement, serve societal functions, including protecting marriage and providing moral boundaries that deter harmful behavior, particularly among young people.

The Role Of Well-Being, Joseph Raz

Faculty Scholarship

"Well-being" signifies the good life, the life which is good for the person whose life it is. I have argued that well-being consists in a wholehearted and successful pursuit of valuable relationships and goals. This view, a little modified, is defended , but the main aim of the article is to consider the role of well-being in practical thought. In particular I will examine a suggestion which says that when we care about people, and when we ought to care about people, what we do, or ought to, care about is their well-being. The suggestion is indifferent to who cares …

The Charity Oversight Authority Of The Texas Attorney General., John W. Vinson

St. Mary's Law Journal

The Attorney General of Texas is the only elected official charged with regulating the state’s charitable interest. This duty and authority over charitable assets and entities are comprehensive and unique in themselves. Although the broader state representation role of American attorneys general has evolved considerably and been substantively codified in the statutory law, the area of charity regulations has remained remarkably true to its common law root. This Article will briefly examine the early roots of charity regulation and then discuss the authority and duties of the Attorney General of Texas in the modern context of charity regulation. In Texas, …

New Texas Ad Litem Statute: Is It Really Protecting The Best Interests Of Minor Children Third Annual Symposium On Legal Malpractice & Professional Responsibility: Comment., Mary E. Hazlewood

St. Mary's Law Journal

Abstract Forthcoming.

My Dinner At Langdell's, Pierre Schlag

Publications

This essay begins on one of those cold wet April Cambridge mornings. It was too wet for fog, but too indifferent for rain. My head ached. My lips were dry and my tongue felt bloated. The fever had surely come back. Worse - the laudanum was wearing off. Tonight would be dinner at Langdell's. It occurred to me that not everyone is invited to Langdell's for dinner - certainly not wayward law professors from the provinces. This was an extraordinary opportunity. Blackstone would be there. Duncan Kennedy perhaps. Certainly the early Llewellyn. I knocked on the door.