Law and Society Commons^™

Texas's Excessive Demand Doctrine Impacts Recoveries In Litigation., Stephanie M. Green

St. Mary's Law Journal

A party demanding money they are not entitled to becomes subject to the excessive demand doctrine. Because the excessive demand doctrine is an affirmative defense, a defending party must allege its claim of excessive demand in its pleadings. A party must “plead it, prove it, and obtain findings of fact on its essential elements.” To obtain findings on the issue, both the pleadings and the evidence are required to put a question or instruction before the jury. Ensuring that the evidence is enough depends upon the trial court—whose judgment will only be overturned upon a showing of an abuse of …

Ford V. State: Texas Forces A Resolution In The Cell Site Location Information Debate., Brandon J. Grable

St. Mary's Law Journal

Abstract Forthcoming.

Use It Or Lose It: Grappling With Classification Of Post-Petition Sale Proceeds Under Chapter Seven Bankruptcy For Consumer Debtors In The Lone Star State., Danielle Nicole Rushing

St. Mary's Law Journal

Texas affords consumer debtors some of the most generous state bankruptcy exemptions in the United States. This includes the homestead exemption, which permits consumer debtors to exempt a homestead of unlimited value from forced sale, subject to certain enumerated exceptions. Bankruptcy courts throughout the state are grappling with how to characterize proceeds from the sale of an exempted homestead once a consumer debtor files a Chapter Seven bankruptcy petition. Specifically, courts consider whether a debtor may personally retain funds from the sale of a homestead or whether a Chapter Seven Trustee should receive the sale proceeds on behalf of the …

When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots And Sticks To Confront The Challenge Of Motivational Crowding-Out, Kristen Underhill

Faculty Scholarship

The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives – namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for …

Rating The Cities: Constructing A City Resilience Index For Assessing The Effect Of State And Local Laws On Long-Term Recovery From Crisis And Disaster, John Travis Marshall

Faculty Publications By Year

Superstorm Sandy, the 2008 Iowa floods, and Hurricanes Katrina and Rita all supply recent reminders that U.S. cities can no longer adopt an ad hoc approach to threats presented by climate change and natural hazards. The stories detailing long-term recovery from these disasters underscore that federal, state, and local governments are struggling to appreciate the legal tools and institutions necessary to implement the large-scale infrastructure, housing, and community development programs that climate change and more frequent natural disasters demand. This Article calls for development of a tool allowing succinct evaluation of the range of community capacities that will figure critically …

Carbon Credits As Eu Like It: Property, Immunity, Tragico2medy?, Kelvin F. K. Low, Jolene Lin

Research Collection Yong Pung How School Of Law

While there have been many legal studies of the European Union Emissions Trading Scheme (EU ETS), none seem to have considered the EU ETS from the perspective of private law, particularly the private law issues that stem from the ambiguous legal nature of the 'carbon credit'. Such ambiguity translates into regulatory uncertainty and business risks of the sort that occurred in Armstrong DLW GmbH v Winnington Networks Ltd [2013] Ch 156, an English case involving fraud and 'stolen' European Union Allowances (EUAs). From an environmental law and policy perspective, uncertainty does not bode well for the EU ETS's regulatory effectiveness …

Submerging Islands: Tuvalu And Kiribati As Case Studies Illustrating The Need For A Climate Refugee Treaty, Rana Balesh

Environmental and Earth Law Journal (EELJ)

Climate change will significantly impact vulnerable populations. Included in those populations are island indigenous peoples. Small island developing states are particularly vulnerable to the rise in seal level. Loss of territory due to rising sea levels is not the only problem however, infrastructure and food supplies are also at risk. As such, this article addresses the need for a comprehensive climate change refugee treaty using Tuvalu and Kiribati's circumstances to illustrate the situation.

Earthonomics: Balancing Between Earth And Business, Yazen Abdin

Environmental and Earth Law Journal (EELJ)

Economists consistently fail to account that Earth has a finite amount of resources. This article analyzes the behavior of corporate America and the effect it has on the world form an Earth jurisprudence standpoint. It will explore twp specific industries, oil and food, and what role they have played in the environment's health. It also explores potential solutions.

Responding To The Great Work: The Role Of Earth Jurisprudence And Wild Law In The 21st Century, Dr. Michelle Maloney, Sister Pat Siemen Op, Jd

Environmental and Earth Law Journal (EELJ)

In this lead article, the authors build on the idea that we do not need more environmental law in response to the deteriorating health of the natural world. Rather, they argue that what is needed are different approaches to managing human relationships with the earth. They argue that the burgeoning Earth jurisprudence movement offers a deep philosophical anchor and a range of practical and multi-disciplinary approaches necessary to create law reform and societal change that will better support the natural world and human societies than our current system. The authors will outline the origins and key elements of the Earth …

Texas Colonias: Injustice By Definition, Caitlin Lewis

Environmental and Earth Law Journal (EELJ)

Colonias are usually characterized as rural or semi-rural slums inhabited by Mexican-origin immigrants and Mexican Americans. This Comment examines the socioeconomic and environmental burdens faced by Texas colonias and the public and private attempts to address these hardships.

Trending @ Rwulaw: Veronica Paricio's Post: What We Did Last Summer..., Veronica Paricio

Law School Blogs

No abstract provided.

Florida's Downtowns Are Free To Grow Local Broccoli…And Chickens (Sometimes), Sidney F. Ansbacher, Michael T. Olexa, Kathleen Maurer

Florida A & M University Law Review

The United States Supreme Court in National Federation of Independent Business v. Sebelius (Sebelius), famously invoked broccoli to limit the scope of Commerce Clause. All of the Justices used broccoli as a plot device to further their respective arguments answering whether the individual mandate to buy health insurance was constitutional. This article discusses the other end of the economic spectrum – local. We explicate Florida’s local government regulations of urban planting, growing, and selling of broccoli, as well as other fruits, vegetables, and animals. This requires a history of urban agriculture and local zoning laws before we discuss current laws …

The Dangerous Right To Food Choice, Samuel R. Wiseman

Seattle University Law Review

Scholars, advocates, and interest groups have grown increasingly concerned with the ways in which government regulations—from agricultural subsidies to food safety regulations to licensing restrictions on food trucks—affect access to local food. One argument emerging from the interest in recent years is that choosing what foods to eat, what I have previously called “liberty of palate,” is a fundamental right. The attraction is obvious: infringements of fundamental rights trigger strict scrutiny, which few statutes survive. As argued elsewhere, the doctrinal case for the existence of such a right is very weak. This Essay does not revisit those arguments, but instead …

The 2014 Farm Bill: Farm Subsidies And Food Oppression, Andrea Freeman

Seattle University Law Review

The 2014 Farm Bill ushered in some significant and surprising changes. One of these was that it rendered the identity of all the recipients of farm subsidies secret. Representative Larry Combest, who is now a lobbyist for agribusiness, first introduced a secrecy provision into the bill in 2000. The provision, however, only applied to subsidies made in the form of crop insurance. Until 2014, the majority of subsidies were direct payments and the identity of the people who received them was public information. In fact, the Environmental Working Group’s release of the list of recipients led to a series of …

Scale Economies, Scale Externalities: Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Scholarly Publications

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of scaling up. But these laws are not widely observed nor rigorously enforced, which upsets this balance and gives large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture is …

Building Resilient Communities In The Wake Of Climate Change While Keeping Affordable Housing Safe From Sea Changes In Nature And Policy, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

This Article will explore the twin interests of responding to climate change and preserving accessible and affordable housing. Part II will give a broad overview of the scientists' climate change predictions. Part III will discuss what these predictions portend for populations, housing, and communities. Part IV will describe the broad responses that the federal, state, and local governments are making to climate change to create communities that are thriving and resilient. Part V discusses the efficacy of these responses and their potential impact on the poor, housing, and communities. Part VI looks for parallels between the resilient cities movement and …

Environmental Privacy, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

This Article looks to nuisance doctrine, surveillance under environmental statutes, and Fourth Amendment cases arising in implementation of fish and game laws (the hunter enforcement cases) to better understand our experience, to date, balancing the need for environmental information with privacy. Section A analyzes common law nuisance and its relationship to individual privacy concerns and concludes that the law affords little *7 value to or protection of privacy in the context of at least one type of environmental externality -- conduct that gives rise to a common law nuisance. Recognizing that most environmentally significant individual behaviors do not constitute a …

Call To The Texas Legislature: The Franchise Tax Needs Substansive Changes, Not Just Rate Reductions., Alyson Outenreath

St. Mary's Law Journal

Abstract Forthcoming.

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

St. Mary's Law Journal

Abstract Forthcoming.

Gradually Exploded: Confrontation Vs. The Former Testimony Rule., Tim Donaldson

St. Mary's Law Journal

Observing live court testimony allows a jury to determine witness credibility. This is called demeanor evidence. Allowing the introduction of transcripts of prior testimony by a witness offends a defendant's right to confrontation guaranteed by the Sixth Amendment of the United States Constitution. Loss of demeanor evidence can heighten sensitivity surrounding the constitutional demands of unavailability and an opportunity for cross-examination. But the loss of this evidence is discounted when dealing with the admissibility of prior testimony as long as a defendant was formerly afforded an opportunity to cross-examine. Demeanor evidence, however, is still treated as a non-essential component of …

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 …

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 …

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 …

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 …

Brookshire Bros.: Cleanup On Aisle 9 - The Current Messy State Of Spoliation Law., Xavier Rodriguez

St. Mary's Law Journal

Abstract Forthcoming.

Enforcement Of Noncompetition Agreements: Protecting Public Interests Through An Entrepreneurial Approach., Griffin Toronjo Pivateau

St. Mary's Law Journal

Abstract Forthcoming.

Revenge Pornography: Exploring Tortious Remedies In Texas., Kevin B. Bennett

St. Mary's Law Journal

Abstract Forthcoming.

How Mccullen Affects San Antonio's Anti-Panhandling Ordinance., Christopher M. Childree

St. Mary's Law Journal

Abstract Forthcoming.

Professor Aloysius A. Leopold: An Extraordinary Man., Gerry W. Beyer

St. Mary's Law Journal

Abstract Forthcoming.