Jurisprudence Commons^™

Sovereign Immunity: The Texas Department Of Transportation's Duty To Maintain Roadways Ravaged By The Eagle Ford Shale Boom., Lasca A. Arnold

St. Mary's Law Journal

While the shale boom has brought about many positive results such as economic growth and new jobs to the Eagle Ford Shale region, the ravaged roadways left in the aftermath must be addressed. The demands for equipment and manpower created by oil and gas exploration are extensive. Sadly, the Texas Department of Transportation (TxDOT)—the entity charged with maintaining and repairing roads in these affected counties—refuses to supply sufficient funding to repair the over used roadways. This pressure is exerted in rural areas where most of the roads and bridges are designed for lower volumes of traffic. In addition to the …

Indemnification Agreements For Intentional Misconduct: Balancing Public Policy And Freedom To Contract In Texas., Meagan Mckeown

St. Mary's Law Journal

Abstract Forthcoming.

The Michael Morton Act: Minimizing Prosecutorial Misconduct., Cynthia E. Hujar Orr, Robert G. Rodery

St. Mary's Law Journal

Twenty-five years ago, Texas prosecutors significantly limited the pre-trial discovery it disclosed to criminal defendants. As a result of this policy, innocent individuals accused of murder, like Michael Morton, were denied their right to due process. Michael Morton was incarcerated for twenty-five years following a wrongful murder conviction. He was denied access to crucial evidence, which included a bandana with the victim’s blood and the killer’s hair, and eyewitness accounts describing the killer at or near the time of the murder. The prosecutor purposely withheld this evidence from Michael Morton; but thanks to the efforts of the Innocence Project, he …

The Posse Comitatus Act Of 1878 And The End Of Reconstruction., Andrew Buttaro

St. Mary's Law Journal

Abstract Forthcoming.

Resolving Drug Manufacturer Liability For Generic Drug Warning Label Defects., Frank Scaglione

St. Mary's Law Journal

Although generic drugs are beneficial to consumers because they are offered as a more cost effective alternative to brand-name prescriptions, brand-name manufacturers are vulnerable to potential lawsuits because of generic drugs. Under the Drug Price Competition and Patent Term Restoration Act of 1984 (Hatch-Waxman Act), generic manufacturers are able to quickly enter the market following the termination of a brand-name drug’s patent. As a result of the Hatch-Waxman Act, 75% of all drugs on the market are generic. The Hatch-Waxman Act, however, also requires generic drug manufacturers to duplicate the brand-name drug’s warning label. As an unintended consequence, injuries have …

Magna Charta: The Charter Of The Forest, And The Prerogatives Of Kings, Allen E. Shoenberger

Faculty Publications & Other Works

No abstract provided.

Sustainability Reporting And New Governance: South Africa Marks The Path To Improved Corporate Disclosure, Ruth Jebe

Cardozo Journal of International and Comparative Law

The past decade has seen a dramatic increase in corporate disclosure of environmental and social information in the form of sustainability reporting. This growth trajectory, coupled with dissatisfaction with current reporting schemes, has fueled debate over the future of sustainability reporting. The discussion consists primarily of criticism of existing reporting systems and is often polarized between proponents of continued voluntary reporting and proponents of increased mandatory reporting. Missing from the debate is a critical recognition: the shortcomings of existing reporting mechanisms reflect the public policy drawbacks of the processes that created them.

This Article addresses the question of how to …

Initial Reflections On An Interdisciplinary Approach To Rule Of Law Studies, Aparna Polavarapu, Joel Samuels

Scholarly Works

In this essay, we attempt to lay the initial groundwork for a clearer understanding of rule of law both as a concept and as a distinct field. We respond to the assertions that the rule of law field is non-existent or incoherent, and assert that a field of rule of law is not impossible to ascertain. First, we survey how rule of law - as both a term and a state of political being - is understood by practitioners and scholars, as well as how scholars reconcile the lack of a clear, widely universal understanding of the concept of rule …

The Keyes To Reclaiming The Racial History Of The Roberts Court, Tom I. Romero Ii

Scholarly Works

This Article advocates for a fundamental re-understanding about the way that the history of race is understood by the current Supreme Court. Represented by the racial rights opinions of Justice John Roberts that celebrate racial progress, the Supreme Court has equivocated and rendered obsolete the historical experiences of people of color in the United States. This jurisprudence has in turn reified the notion of color-blindness, consigning racial discrimination to a distant and discredited past that has little bearing to how race and inequality is experienced today.

The racial history of the Roberts Court is centrally informed by the context and …

Two Dogmas Of Originalism, Ian C. Bartrum

Scholarly Works

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics.” Quine demonstrated that the positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at …

All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara Gordon

Scholarly Works

We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to various …

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin

Articles & Chapters

The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.

My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of …

Raising Legal Giants: The Agency Of The Poor In The Human Rights Jurisprudence Of The Nigerian Appellate Courts, 1990-2011, Obiora C. Okafor, Basil E. Ugochukwu

Articles & Book Chapters

This article examines the extent to which the jurisprudence of the Nigerian appellate courts has expanded, maintained or contracted the opportunities of the poor for exercising as robustly as possible their own ‘agency’ to act to redress human rights abuses committed against them during the period between 1990 and 2011. In doing so, the article mostly utilises a critical socio-legal framework which situates Nigeria’s human rights law relating to the agency of the poor within its historical, social, economic and political context. Specifically, it utilises – among others – the kernel ideas of Upendra Baxi’s seminal trade-related market-friendly human rights …

Judges As Guardian Angels: The German Practice Of Hints And Feedback, Robert W. Emerson

Vanderbilt Journal of Transnational Law

The German practice of Richterliche Hinweispflicht is a judicial duty to give hints and feedback. In a very proactive position, the German judge asks questions of the parties designed to clarify and sharpen the key facts and issues and to give the parties a chance to correct matters that may be grounds for disposition. German judges also must ensure that the parties understand all matters that could affect the outcome of the case. In effect, the German judge's roles may be viewed as civil servant, teacher, and activist, rather than as umpire and overseer, as in the United States.

American …

Some Reasons Courts Have Become Active Participants In The Search For Ultimate Moral And Political Truth, George C. Christie

Faculty Scholarship

This short essay was prompted by the increasing delegation to courts of the responsibility for deciding what are basically moral questions, such as in litigation involving human rights conventions, as well as the responsibility for deciding basic issues of social policy with at best only the most general guidelines to guide their exercise of judicial discretion. The essay discusses some of the reasons for this delegation of authority and briefly describes how courts have struggled to meet this obligation without transcending accepted notions governing the limits of judicial discretion.

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

The Holmes School Of Law: A Proposal To Reform Legal Education Through Realism, Robert Rubinson

All Faculty Scholarship

This article proposes the formation of a new law school, the Holmes School of Law. The curriculum of the Holmes School would draw upon legal realism, particularly as articulated by Oliver Wendell Holmes. The proposed curriculum would focus on educating students about "law in fact"—how law is actually experienced. It rejects the idea that legal education should be about reading cases written by judges who not only bring their own biases and cultural understandings to their role, but who also ignore law as experienced, which, in the end, is what law is. This disconnect is especially troubling because virtually all …

Judge Jack Weinstein And The Allure Of Antiproceduralism, Howard M. Erichson

Faculty Scholarship

In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor …

Mapping A Cultural Studies Of Law, Naomi Mezey

Georgetown Law Faculty Publications and Other Works

In this chapter I briefly map the terrain of a set of scholarly approaches that could be called a cultural analysis of law. A cultural analysis or a cultural studies of law generally starts with the dual premise that law is a set of meaning-making practices that exists within and is the product of a particular culture and that the culture is a set of meaning-making practices that exists within and is the product of a particular set of laws.

In this chapter I unpack and elaborate this foundational idea by exploring three routes along which a cultural analysis of …

Disappearing Claims And The Erosion Of Substantive Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s arbitration jurisprudence from the last five years represents the culmination of a three-decade-long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. Because privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. Here, I argue that the Court’s recent arbitration jurisprudence undermines the substantive law itself.

While this shift from dispute resolution in courts—the …

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the …

Originalism And The Rule Of The Dead, Joel Alicea

Scholarly Articles

The conservative legal movement is in the midst of a great debate about its future. For decades, originalism — the theory that the original meaning of the Constitution is binding on today's interpreters — has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.

On Law-Breaking And Law’S Legitimacy, Aliza Plener Cover

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

An Employer's Relationship With Its Recruiting Firm - Something More Than An Arm's-Length Transaction., Hannah L. Hembree

St. Mary's Law Journal

Taking advantage of the perfect storm created by an increased demand for professional services and a shortage of qualified candidates, recruiting firms search for permanent employees on behalf of employers across the nation. These searches are often characterized by non-exclusive contingency agreements wherein a recruiting firm’s entitlement to remuneration is directly tied to successful placement—ranging from 15% to 30% of a candidate’s first year salary. Though communication from interested applicants constitutes the easiest path to placement, passive candidates are quickly becoming the primary target of zealous recruiters. Passive candidates are those currently employed but open to the possibility of changing …

A History Of The Law Clinics At St. Mary's University School Of Law., Sue Bentch

St. Mary's Law Journal

Abstract Forthcoming.

The Economic Loss Doctrine As An Obstacle To Claims Of Contractual Strangers., Richard L. Reed, Richard L. Reed Jr.

St. Mary's Law Journal

Home owners, contractors, and subcontractors entering a contract to build in accordance with another’s design must be aware of their respective risks under the economic loss doctrine. The economic loss doctrine bars recovery due purely to economic loss by a party that is a contractual stranger. In a typical construction contract, a homeowner may separately contract with a contractor and a design professional. In this situation, the contractor does not have privity with the design professional and the economic loss doctrine bars the contractor from suing the design professional for economic loss. Likewise, if the homeowner hires a contractor and …

Cueing Democracy: Replacing The Texas Election Code's Title Prohibition., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Anti-Retaliation Protection For Internal Whistleblowers Under Dodd-Frank Following The Fifth Circuit Decision In Asadi., Tapas Agarwal

St. Mary's Law Journal

Abstract Forthcoming.

Defining A Health Care Liability Claim In The Post-Texas West Oaks Era., William Woolsey

St. Mary's Law Journal

Following the Texas Supreme Court’s rulings in West Oaks Hospital v. Williams and Ross v. St. Luke’s Episcopal Hospital, it remains unclear whether a non-patient’s injury in a hospital constitutes a health care liability claim (HCLC). If the trial court rules the claim is an HCLC, the plaintiff must present expert testimony. Failure to present an expert report within 120 days after filing the suit results in automatic dismissal. The Texas Supreme Court addressed this issue in West Oaks. The Court held that a claimant, suing a hospital under a theory of premise liability, need not be a patient for …