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Articles 241 - 270 of 397
Full-Text Articles in Jurisprudence
The U.S. Attorney: Fateful Powers Limited Essay., Tom Rickhoff
The U.S. Attorney: Fateful Powers Limited Essay., Tom Rickhoff
St. Mary's Law Journal
Nothing more separates the United States from some of history’s most ruthless and resourceful enemies, the Mexican drug syndicates, than an intermittent trickle of water. In spite of this crisis, the U.S. Attorney’s Office has languished without a presidentially-appointed leader since the Branch Davidian nightmare. Considering the historical influence of the U.S. Attorney’s office, the current situation in the Western District of Texas is somewhat surprising. At one time, U.S. Attorneys exercised almost total discretion as to how the federal government impacted the lives of the powerful as well as the powerless. One of the primary obstacles in restoring effective …
Of Ivory Columns And Glass Ceilings: The Impact Of The Supreme Court Of The United States On The Practice Of Women Attorneys In Law Firms Comment., Nancy L. Farrer
Of Ivory Columns And Glass Ceilings: The Impact Of The Supreme Court Of The United States On The Practice Of Women Attorneys In Law Firms Comment., Nancy L. Farrer
St. Mary's Law Journal
This Commentary examines the effect United States Supreme Court decisions on sex discrimination in the legal profession. Discrimination against women currently appears to be alive and well in the legal field. Decisions like Bradwell v. Illinois and In re Lockwood frustrated women attorneys for over a century, allowing states to determine women were unfit for occupations in areas like law. Hishon v. King & Spalding, and later, Price Waterhouse v. Hopkins, applied Title VII protections to evaluations of potential law firm partners—a process previously closed and unassailable for most of the history of the legal profession. More recently, Harris v. …
The Antiterrorism Act, The Immigration Reform Act, And Ideological Regulation In The Immigration Laws: Important Lessons For Citizens And Noncitizens., Kevin R. Johnson
The Antiterrorism Act, The Immigration Reform Act, And Ideological Regulation In The Immigration Laws: Important Lessons For Citizens And Noncitizens., Kevin R. Johnson
St. Mary's Law Journal
This Article analyzes how the Antiterrorism Act and the Immigration Reform Act reflect a larger historical dynamic in the relationship between domestic subordination and immigration law. The U.S. government historically employed immigration laws in an effort to protect the established political and social order. History reveals a strong correlation between the severe treatment politically subversive U.S. citizens received and the constriction of the immigration laws. This Article argues the lack of constitutional protections for noncitizens helps to explain the recurrent backlash against them. The treatment of noncitizens suggests how far the government might go to suppress domestic political dissent by …
Title Iii Of The Violence Against Women Act: The Answer To Domestic Violence Or A Constitutional Time-Bomb Comment., Yvette J. Mabbun
Title Iii Of The Violence Against Women Act: The Answer To Domestic Violence Or A Constitutional Time-Bomb Comment., Yvette J. Mabbun
St. Mary's Law Journal
The Violence Against Women Act (VAWA) was enacted in 1994 to combat the growing and widespread epidemic of domestic violence. Congressional committees assigned to study this epidemic found that violent attacks by men topped the list of dangers to an American woman’s health. In an attempt to raise society’s awareness of the problem of violence against women and to ameliorate the victimization of women, Congress enacted VAWA. Specifically, Title III of VAWA establishes a federal civil right for victims of violent, gender-motivated crimes. These provide victims with either injunctive or monetary compensation. Consequently, there have been questions about the constitutionality …
Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp
Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp
Faculty Articles
No abstract provided.
Texas Private Real Property Rights Preservation Act: A Political Solution To The Regulatory Takings Problem Comment., George E. Grimes Jr.
Texas Private Real Property Rights Preservation Act: A Political Solution To The Regulatory Takings Problem Comment., George E. Grimes Jr.
St. Mary's Law Journal
Increasing environmental regulation has resulted in an antiregulation backlash and the growth of a property rights movement. Unable to successfully use the courts to protect private property from diminution in value due to government regulations, property rights advocates have looked to the federal and state legislatures for assistance. This has led to some states and the United States Congress to introduce private property rights protection. This protection generally takes one of two forms. The first requires the government to assess the possible effect on property rights before enacting regulations. The second requires the government to compensate property owners for the …
The Maquiladora Industry And Environmental Degradation In The United States-Mexico Borderlands Symposium - The Environment And The United States-Mexico Border., Edward J. Williams
The Maquiladora Industry And Environmental Degradation In The United States-Mexico Borderlands Symposium - The Environment And The United States-Mexico Border., Edward J. Williams
St. Mary's Law Journal
Periods of rapid industrial growth and environmental degradation in the United States-Mexico Borderlands have historically coincided with negative shifts in Mexico’s economy. The Mexican economic crisis of 1982 sparked burgeoning growth in the maquiladora industry, with plants in the Borderlands increasing at a rate of fifteen percent per year. Due to the Mexican economic crisis of the mid-1990s, renewed industrial expansion and environmental degradation is once again expected. The maquiladora program is frequently used to identify cooperative industrial efforts between the United States and Mexico. The term refers to an assembly process in which twin plants operate on opposite sides …
Private Enforcement Of Nafta Environmental Standards Through Transnational Mass Tort Litigation: The Role Of United States Courts In The Age Of Free Trade Symposium - The Environment And The United States-Mexico Border - Comment., Michael Sang H. Cho
St. Mary's Law Journal
Maquiladoras are manufacturing facilities along the United States-Mexico border operated by transnational corporations (TNCs). The arrival of the North American Free Trade Agreement (NAFTA) meant TNCs are free to move capital and operations across the United States-Mexico border at will. Yet, the maquiladora workers are not free to travel or seek employment across the border. The NAFTA debate in the United States raised public awareness of environmental problems in the border region. Nevertheless, maquiladora workers have lived with environmental degradation long before the NAFTA environmental debate began. With the passage of NAFTA, increased trade and the burgeoning industries along the …
Free Trade Agreements And The Federal Courts: Emerging Issues., Robert P. Deyling
Free Trade Agreements And The Federal Courts: Emerging Issues., Robert P. Deyling
St. Mary's Law Journal
The United States and Canada, and more recently Mexico, have tried to resolve certain types of international trade disputes through a unique process. Under the United States-Canada Free Trade Agreement (CFTA) and its successor, the North American Free Trade Agreement (NAFTA), disputing parties may choose binational panels to review disputes over antidumping and countervailing duty determinations. Binational panel review entirely replaces national judicial review for each case in which the parties choose the panel process. Panels are convened on a case-by-case basis from a list of trade experts submitted by disputing countries. Panels must follow relevant national trade law in …
Adarand Constructors, Inc. V. Pena: The Lochnerization Of Affirmative Action Recent Development., Patricia A. Carlson
Adarand Constructors, Inc. V. Pena: The Lochnerization Of Affirmative Action Recent Development., Patricia A. Carlson
St. Mary's Law Journal
The Supreme Court’s decision in Adarand will lead to the invalidation of many federal programs because the decision requires strict scrutiny for all affirmative action programs, including federal programs. The Court ignores both constitutional strictures and American history by resorting to Lochner era rulings of striking down federal socio-economic regulations. Overturning the clear precedent of Fullilove undermines stare decisis by valuing the language of the Court’s decision over its meaning. The Court in Adarand presumes that the Constitution is color-blind. This presumption ignores the history leading up to the Reconstruction Amendments, the purpose of the Reconstruction Amendments, and the intentions …
Nafta And The Environment: A Proposal For Free Trade In Hazardous Waste Between The United States And Mexico Symposium - The Environment And The United States-Mexico Border., David W. Eaton
St. Mary's Law Journal
Over the past decade, the transboundary movement of hazardous waste has become an important issue. Because of its geographic proximity to the United States and its desire to attract foreign investment, Mexico has become one of the United States-owned maquiladoras’ favorite dumping grounds. The recent North American Free Trade Agreement (NAFTA) may only exacerbate matters. Because the health and environmental risks associated with the inappropriate disposal of hazardous waste knows no boundaries, it is important NAFTA signatories jointly address waste issues. While NAFTA has had a positive impact on environmental protection in the United States and Mexico, the NAFTA debate …
The Anatomy Of Emtala: A Litigator's Guide., Alicia K. Dowdy, Gail N. Friend, Jennifer L. Rangel
The Anatomy Of Emtala: A Litigator's Guide., Alicia K. Dowdy, Gail N. Friend, Jennifer L. Rangel
St. Mary's Law Journal
The Emergency Medical Treatment and Active Labor Act (EMTALA) prohibits hospitals from inappropriately transferring or refusing medical care to persons with emergency medical conditions. EMTALA was passed in response to the practice of “dumping” seriously ill patients from private hospitals into public ones, to ensure all patients receive medical treatment in emergency situations. Plaintiffs have attempted to pursue EMTALA claims against non-hospital defendants, but courts have consistently disallowed such claims under the statute. By limiting the scope of its coverage to hospitals, EMTALA creates a situation unique from ordinary medical malpractice. Although hospitals may be held liable for negligent credentialing …
A Fair Day's Pay For A Fair Day's Work: Time To Raise And Index The Minimum Wage., William P. Quigley
A Fair Day's Pay For A Fair Day's Work: Time To Raise And Index The Minimum Wage., William P. Quigley
St. Mary's Law Journal
Millions of people are working for a living but not receiving a living wage in return for their work. The value of the minimum wage continues to erode, with the Congressional Research Service estimating the minimum wage would have to rise to $6.75 per hour in 1996 to equal the purchasing power it represented in 1978. It is not in the common interest, nor in the interest of justice, for people to work full-time, yet remain mired in poverty. Reforming the minimum wage by raising it and indexing it for inflation is a critical step toward attaining Franklin Delano Roosevelt’s …
Intellectual Property Pirates: Congress Raises The Stakes In The Modern Battle To Protect Copyrights And Safeguard The United States Economy Comment., Timothy D. Howell
Intellectual Property Pirates: Congress Raises The Stakes In The Modern Battle To Protect Copyrights And Safeguard The United States Economy Comment., Timothy D. Howell
St. Mary's Law Journal
Intellectual property pirates menace the industry by hijacking audio recordings, movies, television broadcasts, and software—posing an economic threat and accounting for billions of dollars in losses annually. This Comment examines legislative attempts to combat information piracy through criminalization of copyright infringement—focusing on the proposed Criminal Copyright Improvement Act of 1995 (Improvement Act). The Improvement Act contemplates expansion of criminal copyright infringement law, attempting to close the legal “loophole” exposed by United States v. LaMacchia, and providing a more effective means for deterring copyright piracy. Part II of this Comment provides a historical overview of United States copyright laws and introduces …
Principles Of Governmental Immunity In Texas: The Texas Government Waives Sovereign Immunity When It Contracts - Or Does It Comment., Renna Rhodes
St. Mary's Law Journal
When the government causes injury through negligence or by breaching a contract, the injured party must face the obstacle of governmental immunity. The doctrine of governmental immunity can act as a total bar to recovery, especially in Texas. Over the years, governmental immunity increasingly has faced attack from courts and commentators. Some states, including Texas, have revised the common-law doctrine, allowing the government to be sued in certain situations. In Texas, principles of governmental immunity are often misconstrued. Which principles of governmental immunity apply to a particular situation in Texas depends on whether the defendant is a state entity or …
Scientific Evidence Under Daubert., John H. Mansfield
Scientific Evidence Under Daubert., John H. Mansfield
St. Mary's Law Journal
The controversy over the proper standard for the admissibility of scientific evidence is an argument over the value of a jury trial compared with a bench trial or decisions by scientists. The argument has both a constitutional dimension in the provisions relating to a jury trial, compulsory process and due process, and a nonconstitutional dimension in the ordinary law of evidence. In the recent case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court took a different approach, basing its decision almost entirely on an interpretation of the particular words used in Rule 702 of the Federal …
Speaking The Language Of Exclusion: How Equal Protection And Fundamental Rights Analyses Permit Language Discrimination Comment., Donna F. Coltharp
Speaking The Language Of Exclusion: How Equal Protection And Fundamental Rights Analyses Permit Language Discrimination Comment., Donna F. Coltharp
St. Mary's Law Journal
In the summer of 1995, the en banc Texas Court of Criminal Appeals in Flores v. State upheld a lower court’s ruling to give a drunk-driving (DWI) offender a year in prison as opposed to probation. The trial judge denied the defendant probation due to his inability to speak English. The county in which the defendant was arrested and convicted did not provide a DWI rehabilitation program in Spanish, leading the judge to determine the defendant would not benefit from probation. In his appeal, Mr. Flores claimed the lower court violated his equal protection and due process rights under the …
Changing The Nature Of Corporate Representation: Attorney Liability For Aiding And Abetting The Breach Of Fiduciary Duty Comment., Stanley Pietrusiak Jr.
Changing The Nature Of Corporate Representation: Attorney Liability For Aiding And Abetting The Breach Of Fiduciary Duty Comment., Stanley Pietrusiak Jr.
St. Mary's Law Journal
In 1983, the American Bar Association (ABA) comprehensively defined corporate counsel’s ethical duties in situations where a corporate officer engages in conduct which could substantially harm the organization. In such cases, the nature of the corporate attorney’s duties depends on whether the officer’s conduct is illegal or whether the officer made a policy decision which falls short of illegality. Rule 1.13 of the Model Rules of Professional Conduct imposes the duty on corporate counsel to take steps to stop corporate officers from engaging in illegal conduct which is likely to result in substantial injury to the organization. Conversely, counsel is …
Same-Sex Harassment - The Next Step Up In The Evolution Of Sexual Harassment Law Under Title Vii Comment., Regina L. Stone-Harris
Same-Sex Harassment - The Next Step Up In The Evolution Of Sexual Harassment Law Under Title Vii Comment., Regina L. Stone-Harris
St. Mary's Law Journal
Women sexually harassed by male co-workers are protected by Title VII of the Civil Rights Act. Yet, men are not protected because the federal courts in the Fifth Circuit do not protect men who are sexually harassed by other men. Male victims of sexual harassment are protected if they live in another district which does offer Title VII protection to same-sex victims. But should geography dictate protection? The federal courts are currently split as to whether a claim of sexual harassment between members of the same gender is actionable under Title VII of the Civil Rights Act. In the absence …
Third World Texas: Nafta, State Law, And Environmental Problems Facing Texas Colonias Symposium - The Environment And The United States-Mexico Border - Comment., David L. Hanna
St. Mary's Law Journal
The horrendous conditions along the Texas-Mexico border stem from factors on both sides of the Rio Grande River, including maquiladoras, migrant farms, poverty, poor land development, and bureaucracy. The adverse living conditions in Texas’s third world border region have resulted in immense health and safety problems. The United States government promised the North American Free Trade Agreement (NAFTA) would bring new environmental prosperity to the border region. Yet, aside from one sentence in the preamble, NAFTA does not directly address environmental protection. The United States and Mexico, as part of a series of environmental side agreements, created the Border Environmental …
Nafta And The Environment: Dealing With Abnormally High Birth Defect Rates Among Children Of Texas-Mexico Border Towns Symposium - The Environment And The United States-Mexico Border - Comment., Kelly L. Reblin
St. Mary's Law Journal
Along the 868-mile Texas-Mexico border thousands of young women live in fear as deadly birth defects with unknown causes threaten the lives of their unborn children. A total of ninety cases of the birth defect anencephaly, meaning the fetus has no brain, were reported in the fourteen Texas border counties between 1986 and 1991. The cause of these birth defects has yet to be determined officially; yet, researchers and residents along the Texas-Mexico border blame poor environmental conditions caused by the maquiladora industry and inadequate sewage facilities. The Texas Department of Health and the Centers for Disease Control investigated the …
Giving Texas Lawyers Their Dues: The State Bar's Liability Under Hudson And Keller For Political And Ideological Activities., Ralph H. Brock
Giving Texas Lawyers Their Dues: The State Bar's Liability Under Hudson And Keller For Political And Ideological Activities., Ralph H. Brock
St. Mary's Law Journal
The State Bar must provide information for members to assess the propriety of mandatory dues and establish a procedure for members to challenge improper expenditures, however, the Texas State Bar provides no such procedure. Although most states have unified bars, opposition to compulsory bar membership is steady—due largely, to using membership dues to lobby state legislatures in favor of positions which some members may oppose. Chicago Teachers Union v. Hudson and Keller v. State Bar of California are the culmination of labor union and unified bar cases which uphold compulsory membership but establish constitutional limits on the uses of mandatory …
The Presumption Of Innocence: Patching The Tattered Cloak After Maryland V. Craig., Ralph H. Kohlmann
The Presumption Of Innocence: Patching The Tattered Cloak After Maryland V. Craig., Ralph H. Kohlmann
St. Mary's Law Journal
Over one hundred years ago, the United States Supreme Court recognized the importance of the presumption of innocence in a criminal justice system which is based on due process. The Court declared the presumption of innocence is “the undoubted law, axiomatic, and elementary, and its enforcements lies at the foundation … of our criminal law.” The Court’s changing view of the Sixth Amendment’s Confrontation Clause is the most recent contribution to the reduction in the practical value of the presumption of innocence. In Maryland v. Craig, the Court decided that while face-to-face confrontation forms the core of values furthered in …
The Habeas Corpus Revolution: A New Role For State Courts., Charles F. Baird
The Habeas Corpus Revolution: A New Role For State Courts., Charles F. Baird
St. Mary's Law Journal
This Article’s purpose is to portray recent changes in the United States Supreme Court’s habeas corpus jurisprudence—limiting the scope of the federal writ while reducing the federal judiciary’s role overseeing the criminal justice systems. Seemingly, the Court gave little thought to whether this reduction in federal oversight should be accompanied by a greater measure of review on the part of state courts. The writ of habeas corpus, often referred to as the Great Writ, is the primary means of enforcing rights guaranteed under the United States Constitution and federal courts are the principal guardians of these rights. While commitment to …
Capital Punishment: The Humanistic And Moral Issues Address., Helen Prejean
Capital Punishment: The Humanistic And Moral Issues Address., Helen Prejean
St. Mary's Law Journal
Death row reminds us that justice is not equal. Death sentences, opposed to being reserved for only the most heinous crimes, are generally related to the profile of the victim and identity of those most outraged by the crime. The majority of people on death row killed a white person, even though one-half of homicide victims in the United States are people of color. Because of this, and the fact that the law almost always sides with people of wealth and power, the death penalty works to compound societal trauma instead of healing or solving anything. The skewed and harmful …
Use Of A Pen Register May Be A Search Within The Purview Of Article I, Section 9 Of The Texas Constitution., Angie Patrick
Use Of A Pen Register May Be A Search Within The Purview Of Article I, Section 9 Of The Texas Constitution., Angie Patrick
St. Mary's Law Journal
In Richardson v. State, the Texas Court of Criminal Appeals granted Richardson’s second petition for discretionary review to determine whether law enforcement’s use of a pen register constitutes a search. The use of a pen register may be a search within the purview of Article I, Section 9 of the Texas Constitution. Courts use the reasonable-expectation-of-privacy test, from Katz v. United States, to determine whether a search has occurred under the Fourth Amendment. In Richardson, the Texas Court of Criminal Appeals reviewed whether the use of a pen register equates to a search despite the U.S. Supreme Court’s determination in …
Foreigners On Texas's Death Row And The Right Of Access To A Consul Symposium - Human Rights In The Americas., S. Adele Shank, John Quigley
Foreigners On Texas's Death Row And The Right Of Access To A Consul Symposium - Human Rights In The Americas., S. Adele Shank, John Quigley
St. Mary's Law Journal
Foreign nationals arrested in the United States confront the disadvantage of mounting a criminal defense in several ways. In most cases, they are unfamiliar with U.S. customs, police policies, and criminal proceedings. Although U.S. courts strive to prevent bias against accused based on alienage, discrimination does occur. To minimize the disadvantages experienced by accused foreigners, international law guarantees the right of consular access. Under internationally accepted norms applicable in the United States, an accused foreigner is entitled to contact his home-state consult office for assistance. Furthermore, mere involvement of a consul may encourage local government to follow procedural norms and …
The Subjection Of Women . . . Still: Unfulfilled Promises Of Protection For Women Victims Of Domestic Violence Comment., James Martin Truss
The Subjection Of Women . . . Still: Unfulfilled Promises Of Protection For Women Victims Of Domestic Violence Comment., James Martin Truss
St. Mary's Law Journal
Throughout American history, women have fought to realize a full and independent legal identity, equal to men. Nonetheless, issues such as domestic violence have often remained obscured due partly to the judicial system’s reluctance to intrude into “family matters.” Although courts have long-since renounced the common-law rule which allowed a husband to discipline his wife, the plight of the battered woman remained largely ignored by courts and legislatures. The pervasiveness and severity of domestic violence are widely documented. On June 1, 1991, the Texas Supreme Court created the Gender Bias Task Force of Texas (Task Force) to consider whether gender …
Did We Treaty Away Ker-Frisbie Symposium - Human Rights In The Americas., Timothy D. Rudy
Did We Treaty Away Ker-Frisbie Symposium - Human Rights In The Americas., Timothy D. Rudy
St. Mary's Law Journal
This Article explores whether U.S. ratification of the International Covenant on Civil and Political Rights (Civil and Political Covenant) provides the American judiciary with reason to jettison the Ker-Frisbie doctrine. If the United States does not forego use of the Ker-Frisbie doctrine the country will violate its international obligations arising from a major human rights treaty. Part II discusses the customary norm of international law which forbids—and the American rule which permits—forcible abductions overseas. It also reviews whether extraterritorial abductions violate customary international law. Part III discusses applicability of the Civil and Political Covenant to the Ker-Frisbie doctrine and details …
The Natural Law Tradition On The Modern Supreme Court: Not Burke, But The Enlightenment Tradition Represented By Locke, Madison, And Marshall., R. Randall Kelso
The Natural Law Tradition On The Modern Supreme Court: Not Burke, But The Enlightenment Tradition Represented By Locke, Madison, And Marshall., R. Randall Kelso
St. Mary's Law Journal
A traditional common-law style of judicial decisionmaking exists which was present at this nation’s founding. This common law style is derived from natural law tradition. And this tradition stands as an alternative to the formalism of Justice Scalia or the Holmesian style of Chief Justice Rehnquist. This natural law style, with its focus on the religious and communitarian ethical tradition, was the dominant view of judicial interpretation for the framing and ratifying generation of the original Constitution and the Civil War Amendments. The decisionmaking style of Justices O’Connor, Kennedy, and Souter appears to have great affinity with this traditional common-law …